Alabama bill protecting IVF will reopen clinics but limit patients’ rights

The Alabama Legislature is expected to pass legislation Wednesday that would allow fertility clinics in the state to reopen without the specter of crippling lawsuits.

But the measure, which was hastily written and expected to pass by a huge bipartisan margin, does not address the legal question that has led to clinic closures and set off a stormy, politically charged national debate : or embryos frozen and stored for possible future implantation have the legal status of humans.

The Alabama Supreme Court made such a ruling last month, in the context of a claim against a mobile clinic brought by three couples whose frozen embryos were accidentally destroyed. The court ruled that these embryos should be considered human under Alabama law and that the couples were entitled to damages for the wrongful death of a child.

Legal experts said the bill, which Gov. Kay Ivey has indicated she will sign, would be the first in the nation to create a legal moat around embryos, blocking lawsuits or prosecutions if they are damaged or destroyed.

But while the measure will likely bring enormous relief to infertility patients whose treatments were abruptly suspended, it will do so in exchange for limiting their ability to sue when embryo mishaps occur. Such restrictions in an area of ​​medicine with limited regulatory oversight could make the new law vulnerable to legal challenges, the experts said.

Here you will find answers to some important questions:

What does the measure do?

It creates two levels of legal immunity. If embryos are damaged or destroyed, direct providers of fertility services, including doctors and clinics, cannot be sued or prosecuted.

Others who handle frozen embryos, including shippers, cryobanks and manufacturers of devices such as storage tanks, have more limited protection, but it is still significant. Patients can sue them for damaged or destroyed embryos, but the only compensation they can receive is reimbursement for costs associated with the affected IVF cycle.

Does the law benefit patients beyond allowing clinics to reopen?

It may have some advantages. The legal shield protecting providers of fertility services also includes individuals who “receive services,” which appears to extend to patients undergoing IVF

Patients in Alabama will have “a cone around how they do IVF and how they treat their embryos,” including donating frozen embryos to medical research, throwing them away, or choosing not to be implanted with embryos with genetic abnormalities, said Barbara Collurathe president of Resolve, a national group representing infertility patients.

That could be particularly important given the recent state Supreme Court ruling.

“Until now, no state has ever declared embryos human. And once you declare that they are human beings, much more compensation becomes available,” he said Benjamin McMichael, an associate professor at the University of Alabama School of Law, specializing in healthcare and tort law. “So this is the first time we have needed such a bill, because we have always treated embryos as property at best.”

Does the measure prevent a patient from suing a fertility provider for negligence?

The law does not cover everyday medical malpractice. If an infertility patient has a dangerous ectopic pregnancy because a doctor accidentally implanted an embryo in her fallopian tube, she can still sue for negligence, Mr. McMichael said. But among her damages, he said, she cannot claim the destroyed embryo.

“The bill does not establish liability or provide an opportunity for injured parties to hold other people liable,” he said. “It just gives immunity.”

Other legal experts said the lines drawn by the legislature were open to question. Judith There, the dean of Northern Kentucky University Salmon P. Chase College of Law and an expert in reproductive law, gave the example of an embryologist who switches or otherwise mishandles embryos.

“This bill says there is no recourse for patients for reproductive negligence,” she said. “I don’t think that was the intent, but the plain language of the statute would certainly produce such a result.”

Until now, she said, patients haven’t always won such cases, “but here they don’t even have the option to file a claim.”

The measure is very much a doctor protection bill, she added. “I’m not condemning that, but it doesn’t really meet the needs of patients and in fact seems to deprive them of their rights,” she said.

To the extent that the threat of legal consequences can modulate behavior, she says, “this bill certainly gives providers more permission to worry less about caution because there is no liability at stake.”

Are the wrongful death cases that led to the Alabama Supreme Court ruling now moot?

No, these things can continue. The new legislation exempts all embryo-related lawsuits that are currently being litigated. However, if patients have not yet filed a claim based on the destruction of their embryos, they will not be allowed to file one once the bill is passed.

Does this legislation do anything to resolve the personality controversy?

No. It completely sidesteps the question of whether a frozen embryo is a person. That ruling, at least in the context of a wrongful death claim, still stands in Alabama. Instead of tackling the issue, which has caused a political storm across the country, lawmakers are “trying to cut through the liability side of it and come up with some very complex and counterintuitive measures,” Ms Daar said.

Resolve’s Ms Collura said the proposal solves an immediate problem but leaves the bigger issue hanging. “The status of embryos in Alabama is that they are persons. But what is the mechanism by which clinics can open and patients can receive care?” she said. “Is this the best way? No. Will it open clinics? Yes. Does it create other unintended consequences? Yes.”

Emily Cochrane reporting contributed.