Alabama lawmakers pass bill to protect IVF treatments

Alabama lawmakers on Wednesday passed legislation to protect in vitro fertilization providers from civil and criminal liability, ending their fight to allow the fertility treatment after a state Supreme Court ruling ruled that frozen embryos as children should be considered.

But it was unclear whether the protections would be enough for the state’s major fertility clinics to resume treatments. Doctors at one clinic said they were ready to start again as early as the end of this week, while another clinic said they were unsure of the scope of protection and would wait for “legal clarification.”

As the measure went to Governor Kay Ivey, a Republican, for her signature, lawmakers and legal experts acknowledged that the court’s existential questions about the definition of personhood were left unanswered, leaving open the prospect of legal challenges in the future.

The overwhelming vote of support – 81 to 12 with nine abstentions in the House of Representatives and 29 to 1 in the Senate – came just two weeks after the ruling. It showed the intense urgency among Republicans to protect IVF treatments, even if that meant sidestepping the thorny contradictions between their pledge to protect unborn life and fertility treatment practices.

“They’re happy tears, it’s a sigh of relief, just because we know we’re protected,” said Stormie Miller, a Hoover, Ala., mother who had twins through IVF and still has two frozen embryos. Speaking about the future of those embryos, she added: “We can make that decision for ourselves and not let someone make that decision for us.”

Reproductive medicine in the state was thrown into turmoil by the court’s ruling, which applied to a group of families who filed a wrongful death claim over the accidental destruction of their embryos at a clinic in Mobile in 2020. But the interpretation the court’s ruling on Alabama’s statute requiring frozen embryos to be considered children — coupled with an impassioned, theology-driven opinion by the chief justice — sowed fear of civil and criminal liability among doctors and clinics, and raised concerns about the consequences of other states that would take a similar position.

At least three major clinics stopped providing IVF treatments, and an embryo transport company stopped operating in the state. Patients, who said they were already exhausted by the financial, physical and emotional toll of the treatment, begged lawmakers to preserve their chance to grow their families.

And from Montgomery to Washington, Republicans suddenly found themselves rushing to publicly endorse IVF treatments, with some lawmakers sharing their own fertility stories and others calling for a quick legislative fix. The party has already struggled to respond to voters’ concerns about tough anti-abortion laws in a hotly contested presidential year, with President Biden and Democrats pointing to the ruling as yet another sign of Republican domination of women’s lives.

But Alabama Republicans did not address the question of whether a frozen embryo conceived outside the womb should be considered a person. Instead, they quickly negotiated a measure that largely shields clinics and IVF providers from civil and criminal liability and limits shipping companies’ liability to damages to cover “the price paid for the affected in vitro cycle.”

“The problem we’re trying to solve now is getting these families back on track so they can move forward in their effort to have children,” said state Rep. Terri Collins, the lead sponsor of the measure in the House of Representatives . “Should we address that problem? Probably.”

“I don’t want to define life – that’s too important to me, to my faith,” added Ms Collins, who previously led the House of Representatives’ 2019 abortion ban. “But we do have to decide where to start with protection, and I think we need to talk about that.”

Infirmary Health Systems and the Center for Reproductive Medicine, the clinic and doctors involved in the wrongful death lawsuit, said it would not yet resume IVF treatments.

“At this time, we believe the law falls short in addressing the fertilized eggs currently being stored in the state and presents challenges for physicians and fertility clinics trying to help deserving families have children of their own,” the statement said.

Some lawmakers opposed the bill, expressing reservations about whether patients would be able to file negligence lawsuits against doctors and clinics. And some conservatives wondered whether it went too far in supporting a treatment rejected by the Catholic Church and other religious organizations.

“I’m for IVF – it’s just about the treatment of embryos and how we deal with that, and I feel like we need more time to process this,” said Senator Dan Roberts, one of two Republicans who joined on Tuesday abstained from a committee vote. He asked, “Does that embryo have a soul or does it not have a soul?”

Ms. Collins and other senior Republicans suggested a task force could be formed to discuss the issue further. But it was unclear whether that would be enough to clear the murky legal and largely unregulated landscape for IVF treatments.

“The question this bill answers is: Are our fertility clinics liable?” said Clare Ryan, a family law professor at the University of Alabama. “It doesn’t address the bigger questions of: What is the child? When does the act of conception take place? What is the role of uterine implantation?”

Leaders of conservative, religious and anti-abortion groups, including the Susan B. Anthony Pro-Life America group and the Southern Baptist Convention’s public policy arm, signed on a letter urging Ms. Ivey to veto the bill to avoid “a knee-jerk reaction to a troubling situation.”

Lawmakers, the groups wrote, “must oppose an ideology that treats people as expendable commodities” and “take into account the millions of human lives that suffer the fate of being discarded or frozen indefinitely, violating the inherent dignity that they possess by virtue of being human.”

The state Supreme Court’s ruling was also based on a constitutional amendment approved by Alabama voters in 2018 to “recognize and support the sanctity of unborn life and the rights of unborn children,” which reflects language that is defended by groups opposed to abortion rights. Because that language is now woven into Alabama’s 1901 Constitution, some experts said the bill was likely to face further legal challenges this week.

“Republicans created this mess for themselves, and now they are trying to limit its damage without addressing the mess itself,” said Susan Pace Hamill, a law professor at the University of Alabama who specializes in the Alabama Constitution. She added, “They’re doing somersaults to avoid directly disrupting something the Alabama Supreme Court has said.”

Democrats had proposed both a constitutional amendment and a measure that explicitly contradicted the ruling’s definition of personality. But Republicans, who have a supermajority, instead focused on their measure, slipping in a clause that would make immunity retroactive to any case or situation that wasn’t already in litigation when the law was passed.

“We’re creating more problems — we need to confront the elephant in the room,” said Rep. Chris England, a Democrat from Tuscaloosa.

But for the women and some doctors who have been in limbo for two agonizing weeks, the passage of the bill was a welcome relief, with some people in the gallery applauding as the bill passed the House.

Three doctors from the provider Alabama Fertility sat in a row Tuesday at a key Senate committee hearing and reflected on what the past two weeks have been like since they halted IVF treatments at their clinics across the state. They had spent hours deciphering the latest legislative developments and having heartbreaking conversations with their patients.

“She just sobs, ‘I want my baby,'” Dr. recalled. Mamie McLean turns from a conversation. “I usually have something to say. I had nothing to say because we feel that.”

But the bill before them, the doctors said, meant they could resume all their work on Thursday. And the experience made them realize that perhaps they should spend more time talking to lawmakers about their work.

“We must now see this as an extension of our duty to our patients,” said Dr. Michael C. Allemand, adding that “this has opened our eyes.”

Jan Hofman And Sarah Cliff reporting contributed.