Ala. passes law to shield IVF, but legal and ideological questions loom

Alabama lawmakers on Wednesday hastily passed a bill to provide some civil and criminal immunity to patients and health care providers using in vitro fertilization. The bill, signed into law by Governor Kay Ivey within the hour of its passing, comes into play in the event that embryos—which were recently ruled to be “children” by the state’s Supreme Court—are damaged or destroyed, a standard and common occurrence in fertility treatment.

The new protections are intended to restore IVF treatment in Alabama after the state Supreme Court’s ruling last month led at least three major IVF providers and one embryo shipping company to suddenly halt aspects of their work in fear of liability for wrongful death lawsuits. People going through the arduous and costly process of IVF were then abruptly denied the very time-sensitive treatments needed to try to grow their families. The ruling drew outcry from around the state and across the nation.

IVF is a type of assisted reproductive technology that involves fertilizing painstakingly harvested eggs with sperm in a lab setting, allowing the fertilized eggs to develop into embryos, and then either transferring a limited number of them into a uterus at a key time in hopes of implantation or freezing them for later use. Not all fertilized eggs develop into viable embryos, and any embryos that are unviable or unneeded are routinely discarded.

The law enacted Wednesday is seen as a legislative Band-Aid that leaves numerous questions unanswered. The law, for instance, provides broad immunity, raising questions about how it might affect cases of alleged medical malpractice.

But, most notably, it entirely ignores the crux of the Supreme Court’s ruling: whether frozen embryos have the same legal rights as children. In its ruling, the court drew from a 2018 amendment to the state’s constitution to “recognize and support the sanctity of unborn life and the rights of unborn children.” Lawmakers have only begun to grapple with the contradiction of having personhood defined as beginning at fertilization but granting immunity to those who destroy fertilized eggs considered children. The incongruence leaves open the possibility of future legal challenges to the rushed law.

“I think there’s just too much difference of opinion on when actual life begins,” Tim Melson, the Republican senator who sponsored the immunity legislation, said, according to NPR. “A lot of people say conception, a lot of people say implantation, a lot of people say heartbeat,” Melson said. “I wish I had an answer.”

Instead, during a floor debate, Melson acknowledged the lingering questions, such as whether an embryo that was frozen for 30 years before being transferred into a uterus would be considered 30 years old at birth and be eligible for things like a driver’s license. Other lawmakers raised the question of whether the state would be required to take custody of any abandoned frozen embryos or whether health care providers could still face wrongful death liability of an embryo outside of IVF treatments.

Since the court ruling, some Republicans have rushed to support IVF despite also supporting the idea that life begins at fertilization in efforts to ban abortion. But others are being clearer and more consistent in their ideology. Alabama Republican state Rep. Ernie Yarbrough, for instance, compared the destruction of embryos in IVF clinics to a “holocaust” and wanted to keep IVF procedures halted in the state to “make sure we are not endorsing the destruction of lives of children.”