MONTGOMERY, Ala. — Alabama lawmakers racing to restart in vitro fertilization services in the state began final debate Wednesday on legislation shielding providers from the fallout of a court ruling that equated frozen embryos to children.
The measure would protect providers from lawsuits and criminal prosecution for the “damage or death of an embryo” during IVF services. The state’s three major IVF providers paused services after the Alabama Supreme Court’s ruling last month because of the sweeping liability concerns it raised.
The House of Representatives voted 81-12 for the bill that now returns to the Alabama Senate. Legislators have fast-tracked the immunity legislation as a proposed solution to get clinics open while they weigh whether additional action is needed. If the legislation passes, it will go to Gov. Kay Ivey to be signed into law, possibly the same evening.
“My goal is to get these clinics back open and women going through their treatment,” said Republican Sen. Tim Melson, the sponsor of the bill.
Lawmakers pushed the immunity proposal as a way to address clinic’s immediate concerns and get them open. But they did not take up any legislation that would address the legal status of embryos.
“I think there is too much difference of opinion on when actual life begins. A lot of people say conception. A lot of people say implantation. Others say heartbeat. I wish I had the answer,” Melson said. Melson, who is a doctor, said lawmakers may have to come back with additional legislation but said he said it should be based on “science not feelings.”
The court ruled that three couples whose frozen embryos were destroyed when a hospital patient got into the storage unit at a fertility clinic and dropped the embryos could pursue wrongful death lawsuits for their “extrauterine children.” The ruling, treating an embryo the same as a child or gestating fetus under the wrongful death statute, raised concerns about civil liabilities for clinics. A fourth couple filed a similar wrongful death lawsuit last week.
The court ruling recognizing embryos as children drew a backlash and patients saw appointments abruptly canceled or their paths to parenthood put in doubt.
The bill says that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” The immunity would be retroactive but would exclude pending litigation. Civil lawsuits could be pursued against manufacturers of IVF-related goods, such as the nutrient-rich solutions used to grow embryos, but damages would be capped and criminal prosecution would be forbidden.
Dr. Michael C. Allemand with Alabama Fertility said Tuesday that the legislative proposal would allow the clinic to resume IVF services by returning “us to a normal state of affairs in terms of what the liability issues are.”
He said the past weeks have been difficult on patients and staff as procedures have been postponed.
“There’s been some truly heart-wrenching conversations that have taken place,” Allemand said.
The American Society for Reproductive Medicine, a group representing IVF providers across the country, said the legislation does not go far enough. Sean Tipton, a spokesperson for the organization, said Monday that the legislation does not correct the fundamental problem, which he said is the court ruling “conflating fertilized eggs with children.”
House Democrats proposed legislation that would put in state law or the state Constitution that a human embryo outside a uterus cannot be considered an unborn child or human being under state law. Democrats argued that was the most direct way to deal with the issue. Republicans have not brought the proposals up for a vote.
Republicans are also trying to navigate tricky political waters — torn between widespread popularity and support for IVF — and conflicts within their own party. Some Republicans have unsuccessfully sought to add Louisiana-style language to ban clinics from destroying unused or unwanted embryos.
State Republicans are reckoning with an IVF crisis they partly helped create with anti-abortion language added to the Alabama Constitution in 2018. The amendment, which was approved by 59% of voters, says it is state policy to recognize the “rights of unborn children.”
The phrase became the basis of the court’s ruling. At the time, supporters said it would allow the state to ban abortion if Roe v. Wade were overturned, but opponents argued it could establish “personhood” for fertilized eggs.
During debate in the House of Representatives on Tuesday, state Rep. Chris England, a Democrat from Tuscaloosa, said lawmakers were attempting to play “lawsuit whack-a-mole” instead of confronting the real issue — the implications of personhood-like language in the Alabama Constitution.
“The real solution to this is determining the definition of a child and having a real conversation about the implications of some of the decisions we’ve made,” England said.
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