By Emily Cochrane
Alabama lawmakers on Wednesday passed legislation to shield in vitro fertilization providers from civil and criminal liability, capping off their scramble to allow the fertility treatment after a state Supreme Court ruling found that frozen embryos should be considered children.
Gov. Kay Ivey, a Republican, swiftly signed the bill into law.
Two major clinics said they were moving to restart treatments, possibly in the coming days, while another clinic said it was not assured about the scope of protections and would wait for “legal clarification.”
Lawmakers and legal experts acknowledged that the law did not address existential questions raised by the court about the definition of personhood, leaving open the prospect of legal challenges in the future.
The overwhelming vote of support — 81-12 with nine abstentions in the House and 29-1 in the Senate — came barely two weeks after the ruling demonstrated 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.
“It’s happy tears, it’s a sigh of relief just because we know we are protected,” said Stormie Miller, a Hoover, Alabama, mother who had twin girls through IVF and has two remaining frozen embryos. Talking about the future of those embryos, she added, “We’re able to make that decision for ourselves and not have someone make that decision for us.”
Reproductive medicine in the state was thrown into turmoil by the court 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 court’s interpretation of Alabama statute that frozen embryos should be considered children — coupled with an impassioned, theology-driven opinion from the chief justice — sowed fear about civil and criminal liability among doctors and clinics, and raised concern about the ramifications of other states taking a similar stance.
At least three major clinics stopped IVF treatments, and an embryo shipping company paused its business in the state. Patients, who said they were already exhausted by the financial, physical and emotional toll of treatment, pleaded with lawmakers to preserve their chance to grow their families.
And from Montgomery to Washington, Republicans suddenly found themselves racing 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 voter concerns about stringent anti-abortion laws in a hotly contested presidential year, and President Joe Biden and Democrats pointed to the ruling as yet another sign of Republican overreach into women’s lives.
But Alabama Republicans stopped short of addressing whether a frozen embryo conceived outside the womb should be considered a person. Instead, they quickly negotiated a measure that broadly shields clinics and IVF providers from civil and criminal liability and limits the liability for shipping companies to damages to cover “the price paid for the impacted in vitro cycle.”
“The problem we’re trying to solve right now is to get those families back on a track to be moving forward as they try to have children,” said state Rep. Terri Collins, the lead sponsor of the measure in the House. “Will we need to address that issue? Probably.”
“I don’t want to define life — that’s too important to me, to my faith,” Collins, who previously led the push in the House to ban abortion in 2019, added. “But we do have to decide where we begin protection, and that’s what I think we’ll have to talk about.”
Infirmary Health Systems and the Center for Reproductive Medicine, the clinic and doctors entangled in the wrongful-death lawsuit, said they would not yet resume IVF treatments.
“At this time, we believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own,” their statement said.
The University of Alabama at Birmingham health system said it was “moving to promptly resume IVF treatments” but would “continue to assess developments and advocate for protection.”
Some lawmakers opposed the bill, expressing reservations over whether patients would be able to pursue negligence lawsuits against doctors and clinics. And some conservatives grappled with whether it went too far in supporting a treatment disavowed by the Catholic Church and other religious organizations.
“I’m for IVF — it’s just the treatment of embryos and how we handle that, and I feel like we need more time to process,” said state Sen. Dan Roberts, one of two Republicans who abstained from a committee vote on Tuesday. He asked, “Does that embryo have a soul or not have a soul?”
The state Supreme Court ruling also drew upon a constitutional amendment approved by Alabama voters in 2018 to “recognize and support the sanctity of unborn life and the rights of unborn children,” reflecting language championed by groups opposed to abortion rights. Because that language is now enmeshed in the 1901 Alabama Constitution, some experts said the new shield law would likely face further legal challenges.
“Republicans created this mess for themselves, and now they’re trying to contain the damage from it without dealing with the mess itself,” said Susan Pace Hamill, a University of Alabama law professor who specializes in the Alabama Constitution. She added, “They are doing back somersaults to avoid disturbing directly anything the Alabama Supreme Court said.”
Democrats had put forward both a constitutional amendment and a measure that explicitly countered the personhood definition established in the ruling. But Republicans, who hold a supermajority, instead focused on their measure, tucking in a clause that would make the immunity retroactive for any case or situation that was not already in litigation when the law passed.
“We’re creating more problems — we have to confront the elephant in the room,” said Rep. Chris England, D-Tuscaloosa.
But for the women and some doctors who have been in limbo for an agonizing two weeks, the passage of the bill was a welcome relief, with a couple people in the gallery applauding when the bill passed the House.