Alabama legislature passes IVF protections, paving the way for fertility clinics to reopen

Alabama lawmakers gave final approval Wednesday to legislation protecting in vitro fertilization providers and patients, less than a month after the state Supreme Court upended fertility practices with a ruling that frozen embryos are legally protected as children.

Members of the House passed the bill 81-12, and the Senate voted to concur, 29-1.

The bipartisan legislation provides civil and criminal immunity to fertility clinics and doctors for the "death or damage to an embryo" during the IVF process. The only legal recourse in the event of a destroyed embryo would be civil lawsuits against manufacturers of IVF-related goods, and in those instances damages would be determined by the cost families paid for the fertilization treatment.

The ongoing IVF debate began Feb. 16 when the Alabama Supreme Court ruled that human embryos existing outside of a womb are entitled to the same rights and protections as children.

The ruling thrust the state into the national spotlight and sent Republican and Democratic lawmakers scrambling for a legislative fix. After a fast-track through the statehouse, Republican Gov. Kay Ivey signed the bill into law within the hour.

“The overwhelming support of SB159 from the Alabama Legislature proves what we have been saying: Alabama works to foster a culture of life, and that certainly includes IVF. I am pleased to sign this important, short-term measure into law so that couples in Alabama hoping and praying to be parents can grow their families through IVF," Ivey said in a statement Wednesday. "IVF is a complex issue, no doubt, and I anticipate there will be more work to come, but right now, I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately."

In the week after the ruling, three of Alabama's largest IVF providers temporarily shut down out of fear of prosecution. Elected officials from across Alabama and the nation began speaking out in support of IVF — including President Joe Biden, Vice President Kamala Harris and former President Donald Trump.

The Biden administration even dispatched Health and Human Services Secretary Xavier Becerra to Alabama to address the issue.

“I think it’s become clear that this isn’t just about abortion,” Becerra said. "Roe would not have permitted this."

Impact on IVF doctors and families

The University of Alabama at Birmingham health system was the first IVF provider to pause its practice after the ruling came down. UAB issued a statement Wednesday announcing that it plans to "promptly resume" treatments.

"UAB appreciates the Alabama Legislature and Governor Kay Ivey for swiftly passing and signing legislation that provides some protections and will therefore allow UAB to restart in vitro fertilization treatments," the statement read.

In the days that followed the court's decision, the IVF community sat in a panicked limbo. Women actively pursuing IVF didn't know if they would be able to continue receiving treatments they already paid for or if they would have to find new doctors out of state.

Dr. Michael Allemand of Alabama Fertility, one of the clinics that paused services, said he was constantly fielding calls from patients wondering what they should do. He didn't know what to tell them. He was also one of several fertility doctors present in the Senate on Wednesday for the vote.

"These people have a right to care, and just because they live in the state of Alabama doesn't mean they should get substandard care," he told the Montgomery Advertiser last month. "We take great pride in what we do and how we do it for our patients."

An Alabama Fertility patient, Ashley Stork, said she felt lucky that her last embryo transfer happened right before the Supreme Court decision came down.

"We're just really, really prayerful that this cycle works," she said. "And that our laws are able to change quickly."

The court case that started it all

The initial ruling stemmed from a case in South Alabama. A patient in the Mobile Infirmary Medical Center was walking around an area he was not authorized to be in and happened upon the frozen embryos of three families. The patient dropped them to the ground, ending their viability.

The three couples to whom the embryos belonged sued the medical center and their fertility clinic, The Center for Reproductive Medicine, for wrongful death.

A lower court said wrongful death protections did not apply to frozen embryos, but the Alabama Supreme Court disagreed.

Alabama Supreme Court Justice Jay Mitchell included numerous references to God, Christianity and the Holy Bible in his opinion on the decision. Some of the Bible verses cited include:

• Genesis 9:6: “Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man."

• Genesis 1:27:  “So God created man in his own image, in the image of God created he him; male and female created he them.”

• Exodus 20:13: "You shall not murder."

Every Alabama Supreme Court justice concurred with Mitchell except for Justice Greg Cook.

Placing Alabama and IVF in national spotlight

After February's IVF ruling, some doctors worried that Alabama would be the first of many states to limit IVF access, particularly in the wake of the U.S. Supreme Court decision to overturn Roe v. Wade, the landmark ruling on abortion. Like other conservative states, Alabama has a strict anti-abortion law.

“Just like we saw with abortion restrictions, when something is being presented in one state and is palatable in that jurisdiction, we're seeing other states try to bring similar cases, similar legislation, so of course, we are afraid that there will be a spread to other red states,” fertility practice owner Dr. Natalie Crawford said.

Since then, legislators across the country have begun to discuss the future of IVF. In Florida, lawmakers sidelined a bill that would have allowed civil lawsuits from the wrongful death of an "unborn child" following the national attention on Alabama.

But in Tennessee this week, Republican lawmakers blocked legislation to codify legal protections for birth control and in-vitro fertilization treatments, saying it was unnecessary in the state.

As for federal protections, it remains unclear whether legislation from Senate Democrats will garner any support from the GOP senators who have voiced their support for IVF in recent weeks.

Criticisms of Alabama's legislation

Some people, like attorney Sarah London, have criticized the IVF bill as creating a “potentially dangerous environment for patients. London has represented clients in numerous women’s health cases, including one where plaintiffs claimed a medical supply company’s faulty product resulted in the destruction of over 100 embryos.

“It is vital to protect access, but we should not give complete immunity to the fertility industry and wipe out critical protections for women undergoing IVF treatment,” London said. “When the industry fails to live up to minimum safety standards and the promises made to hopeful parents, we need to ensure there is a pathway to accountability.”

Prior to the bill’s passage, several Democratic representatives spoke in opposition to the bill, claiming that it’s poorly written legislation that inconsistently applies the state's definition of a child.

In Alabama Code, that definition includes “an unborn child in utero at any stage of development, regardless of viability.”

State Rep. Christopher England, D-Tuscaloosa, said the legislation creates more problems than it solves.

“It’s unfortunate what has happened, but this is a really bad piece of legislation,” England said. “What we’re doing right now is just trying to play lawsuit whack-a-mole.”

He said it would be unconstitutional to give doctors “blanket authority” to destroy embryos, and he also said the bill inconsistently applies the definition of a child to IVF and abortion.

Rep. Juandalynn Givan, D-Birmingham, echoed England’s concerns, stating that the legislation creates a “special class of doctors.”

“To the IVF people, don’t tweet me, don’t call me, don’t email me to argue a point with me about this because I don’t want to hear it,” Givan said. “This is a free-for-all for IVF doctors.”

Hadley Hitson covers children's health, education and welfare for the Montgomery Advertiser. She can be reached at hhitson@gannett.com. To support her work, subscribe to the Advertiser.

Victor Hagan is the Alabama Election Reporting Fellow for the USA TODAY Network. He can be reached at vhagan@gannett.com. To support his work, subscribe to Advertiser.

This article originally appeared on Montgomery Advertiser: state legislature approves ivf protection bill