Amid backlash for IVF ruling, Alabama lawmakers look for fix

Two hands in heavy gloves use tongs to take a metal object from a freezing metal chamber brimming with fog-like gas

Associated Press

Feb. 23, 2024 4:35 PM PT

MONTGOMERY, Ala. — Lawmakers began scrambling for ways to protect in vitro fertilization in Alabama after multiple providers paused their services in response to a state Supreme Court ruling that frozen embryos could be considered children under a state law.

Facing a wave of shock and anger from the decision, legislators in the state House and Senate prepared separate proposals seeking to prevent a fertilized egg from being considered a human life or an unborn child until it is implanted in a woman’s uterus.

Justices ruled this week that three couples who had frozen embryos destroyed in a mishap at a storage facility could pursue wrongful death claims for their “extrauterine children.” The justices cited sweeping language that the Republican-controlled Legislature and voters added to the Alabama Constitution in 2018 saying that the state recognizes the “rights of the unborn child.”

State Senate Minority Leader Bobby Singleton, a Democrat, said Republicans helped create the situation in their push to enact some of the most stringent antiabortion laws in the country. The result, he said, was eliminating a path for people to become parents.

“At the end of the day, the Republican Party has to be responsible for what they have done,” Singleton said.

Former President Trump joined the calls for Alabama lawmakers to act, saying Friday that he would “strongly support the availability of IVF.”

Republican state lawmakers said they were working on a solution.

“Alabamians strongly believe in protecting the rights of the unborn, but the result of the State Supreme Court ruling denies many couples the opportunity to conceive, which is a direct contradiction,” House Speaker Nathaniel Ledbetter said.

Republican state Sen. Tim Melson, a physician, said his proposal seeks to clarify that a fertilized egg is a “potential life” rather than a human life, until it is implanted in the uterus.

“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available for people who have fertility issues that need to be addressed because they want to have a family,” Melson said.

House Minority Leader Anthony Daniels, a Democrat, introduced legislation that would clarify that a “human egg or human embryo that exists in any form outside of the uterus shall not, under any circumstances, be considered an unborn child” under state law.

“This is just the first step in unwinding this predicament our state has placed itself in,” Daniels said.

Melson said he was not surprised that Alabama is seeing unintended consequences from the language added to the state constitution in 2018.

Supporters said at the time that the wording was intended to block abortion if the states ever gained control of the issue — which they did in 2022. But opponents warned that the language amounted to a “personhood” measure that would establish “constitutional rights for fertilized eggs.”

Gov. Kay Ivey, a Republican, said Alabama wants to foster a culture of life, and that includes “couples hoping and praying to be parents who utilize IVF.”

Alabama Atty. Gen. Steve Marshall, also a Republican, does not intend to prosecute IVF providers or families based on the state Supreme Court ruling, according to a statement from his office’s chief counsel, Katherine Robertson.

The court’s ruling in favor of treating embryos the same as children or gestating fetuses under the wrongful death statute has raised questions about what legal liabilities clinics could face during IVF processes, including the freezing, testing and disposal of embryos. Three in vitro fertilization providers in Alabama have paused their services since the ruling.

Gabby Goidel, who was days from a scheduled appointment to retrieve eggs for in vitro fertilization, was told Thursday that her provider would not continue doing embryo transfers.

“I started crying,” said Goidel, who rushed to Texas with her husband to try to continue the IVF cycle with a provider there. The Alabama ruling is “not pro-family in any way,” she said.

At the Fertility Institute of North Alabama, Dr. Brett Davenport said his clinic would continue providing IVF. But he also urged state policymakers to act and remove the uncertainty for providers.

“What we do could not be any more pro-life. We’re trying to help couples who can’t otherwise conceive a child,” Davenport said.

The court ruled only that embryos are covered as children under Alabama’s wrongful death statute, said Mary Ziegler, a legal historian at UC Davis School of Law. The court did not say embryos had full constitutional rights, she said — at least not yet.

“I think people in Alabama are rightly expecting that this is the tip of the iceberg, though, and this ruling will lead to more down the road,” Ziegler said.

She also pointed out that antiabortion groups and politicians had been pushing to get some sort of ruling through the federal courts stating “that a fetus is a constitutional rights holder.”

“It’s not just about in vitro and it’s not just about Alabama,” she said. “It’s part of this nationwide movement.”