Alabama Legislature gives final approval to in vitro fertilization bill

Embryologist Ric Ross holds a dish with human embryos at the La Jolla IVF Clinic February 28, 2007 in La Jolla, California. The University of Alabama Bimringham Wednesday said it was stopping IVF treatments after the Alabama Supreme Court ruled that frozen embryos were children. (Sandy Huffaker/Getty Images)

Alabama Gov. Kay Ivey Wednesday night signed a bill aimed at restarting in vitro fertilization (IVF) services in the state, minutes after the Alabama Legislature gave final approval to the legislation.

SB 159, sponsored by Sen. Tim Melson, R-Florence, which provides criminal and civil immunity to providers and patients of IVF services, passed the House 81-12.

The Senate concurred in House changes to the bill on Wednesday evening on a 29-1 vote.

“I truly hope and believe that the clinics will open back, that this is going to provide the immunity that they need to continue doing the process with these families,” said Rep. Terri Collins, R-Decatur, who carried the bill in the House, after the bill’s passage.

Collins sponsored Alabama near-total abortion ban in 2019.

IVF programs in Alabama have been paused since a Feb. 16 Alabama Supreme Court decision that declared frozen embryos children. The court, ruling on a lawsuit over the destruction of frozen embryos by an unauthorized person in a Mobile clinic in 2020, said parents in the suit could collect damages under an 1872 state law allowing civil actions for the deaths of children. Several IVF programs closed in the days following the decision, citing the legal risks to patients and providers.

The decision led to widespread criticism; drew hundreds of people to Montgomery for a Feb. 28 protest and left Republican lawmakers scrambling to restart the programs.

Sarah Brown, a Birmingham resident and in vitro fertilization patient, holds a sign saying “I’m Here Because of IVF” at the Alabama Statehouse on Feb. 28, 2024 in Montgomery, Alabama. Supporters of bills aiming to protect IVF access held a rally Wednesday ahead of committee hearings on the legislation. (Brian Lyman/Alabama Reflector)

The legislation was amended in committee to also provide criminal but not civil immunity to manufacturers of goods involved in IVF treatment if embryos are destroyed. If found liable, manufacturers of goods would have to pay for damages, determined by the price the family paid for the fertilization treatment.

The court also based its decision on a 2018 “Sanctity of Life” amendment to the Alabama Constitution, passed by the Republican-controlled Legislature in 2017 and approved by voters in 2018. The amendment says that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children,including the right to life.”

Democrats have argued that the court’s reliance on the 2018 measure means that the situation can only be addressed by another constitutional amendment. House Minority Leader Anthony Daniels, D-Huntsville, filed an amendment to do that on Feb. 27, co-sponsored by all 28 Democratic House members. The bill has not come up for a committee vote.

Rep. Chris England, D-Tuscaloosa, speaks during a debate on a bill aimed at preserving in vitro fertilization services in Alabama in the Alabama House of Representatives at the Alabama Statehouse in Montgomery, Alabama on Feb. 29, 2024. The House approved a bill providing criminal and civil immunity to IVF providers, following an Alabama Supreme Court ruling that caused many programs to close their doors. (Brian Lyman/Alabama Reflector)

Rep. Chris England, D-Tuscaloosa, said during debate on Wednesday “this is a really bad piece of legislation, across the board,” because they are legislating issues that lawyers are “paid to spot in terms of filing lawsuits.”

A second wrongful death of a minor lawsuit was filed last week against the Mobile clinic at the center of the Supreme Court decision. England said the purpose of that lawsuit is to challenge the immunity that the Legislature is creating for IVF providers. He said the Legislature was creating more problems.

“Our legislation here provides a clear pathway for doctors in those facilities to destroy embryos,” he said. “If I’m not mistaken, (and) you go back and you read the constitutional amendment, it says that we can’t do that. We can’t.”

Rep. Phillip Ensler, D-Montgomery, called the legislation a “Band-Aid fix” and that he’s concerned the Legislature will have to come up with another solution if someone successfully challenges the statute.

“Are we going to be back in the same exact place? So, I hope moving forward, instead of just the statutory, temporary fix, that we look at the big picture, that we never have to do this again,” Ensler said.

Melson said Wednesday night he did not think it was time to “go back and re-evaluate” the 2018 amendment.

“I know there was some talk about looking at it again when Roe v. Wade got overturned, but nobody expected to get overturned, and we’re just having to deal with the consequences,” he said. “But again, first and foremost, we’ve been pro-life. and I think that’ll continue, and we just have to work through these complications.”

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, said in a statement that while they are “relieved” that clinics in Alabama can restart IVF treatment, that “this legislation does not address the underlying issue of the status of embryos as part of the IVF process.”

“There is more work to be done,” the statement said.

At a press conference called by the House Republican Caucus after the bill’s passage, Collins said that those kinds of solutions are “a longer conversation than we can have in the five days.”

“What we’re going to have to do is just see what happens as we move forward,” Collins said.

Rep. Juandalynn Givan, D-Birmingham, said she was concerned that the Legislature is creating a “special class of doctors” that are immune from damages that other doctors won’t have.

“I think this is a very dangerous bill for us to be adapting just for the urgency of the situation,” Givan said.

Sen. Larry Stutts, R-Tuscumbia, voiced his opposition before the Senate concurred. He said that the Legislature is setting a “dangerous precedent” by assigning a value to a life,” in reference to providing partial immunity to manufacturers of goods.

“I think it is a path that we absolutely should not have gone down. And we may say we’re so far down and now we can’t turn around and go back,” Stutts said.

Some Democratic House members suggested the Legislature is acting with urgency because the Supreme Court ruling is largely affecting people who can afford to pay for the expensive fertility treatment.

England, citing unequal access to reproductive care in the state, said he doesn’t want to create a situation where the Legislature “creates the haves and the have nots.”

“Because essentially, if you are rich, and you have the resources, you can do things that IVF clinics that poor people can’t do in an abortion clinic,” England said.

Sen. Tim Melson, R-Florence (right) speaks to a rally for IVF legislation with Rep. Terri Collins, R-Decatur on Feb. 28, 2024 at the Alabama Statehouse in Montgomery, Alabama. Supporters of bills aiming to protect IVF access held a rally Wednesday ahead of committee hearings on the legislation. Melson and Collins have both sponsored legislation. (Brian Lyman/Alabama Reflector)

Rep. Patrick Sellers, D-Birmingham, said he’s not opposed to IVF, but he does have issues with it in Alabama if the state chooses to define life at “conception.” He asked what happens to embryos that are not used and compared it to an abortion.

“I’m just a little confused at this whole process because it seems on one hand, we’re being quite hypocritical, but on the other hand, it’s okay, if you can afford (it),” Sellers said.

House Speaker Nathaniel Ledbetter, R-Rainsville, said in the press conference after the bill’s passage that the legislation “was probably as much of a pro-life piece of legislation that we’ve ever passed.”

Rep. Paul Lee, R-Dothan, chair of the House Health committee, said that they had no idea what they would be dealing with the issue three weeks ago, and treated this as a priority by putting everything else on hold.

“Our goal was to make sure that the families could continue the process, because life to us is that important, and we wanted to make sure it happened as quickly as we could,” Lee said.

Jemma Stephenson contributed to this report.

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