- Alabama lawmakers voted unanimously on March 6 to protect IVF providers from civil and criminal liability.
- Gov. Kay Ivey signed SB 159 into law following the Alabama Supreme Court ruling that frozen embryos are “children” under the Wrongful Death of a Minor Act.
- The Court’s decision imperiled IVF fertility treatments in Alabama, where those who are anti-abortion say life begins at conception.
- Pro-choice activists and health experts have warned about the implications for fertility treatments in states where abortions are banned or restricted.
In Alabama, some fertility clinics will resume treatments after lawmakers passed legislation that would protect providers of in vitro fertilization (IVF) from liability and prosecution.
Republican Gov. Kay Ivey signed SB 159 into law on March 6, just two weeks after the Alabama Supreme Court ruled that frozen embryos are “children” under the state’s Wrongful Death of a Minor Act, imperiling IVF treatments in the state. Several frozen embryos belonging to three couples undergoing IVF were accidentally destroyed in a hospital cryonursery.
Lawmakers voted in support of the bill 81 to 12 in the House and 29 to 1 in the Senate. The overwhelming majority demonstrates the need to safeguard IVF treatments in Alabama despite religious arguments made by the state’s Supreme Court to protect what it believes to be unborn life.
However, the definition of “personhood” could remain unclear under Alabama state law as legal challenges with IVF and frozen embryos still lay ahead.
“While we are grateful for the actions of Alabama legislators, this legislation does not address the underlying issue of the status of embryos as part of the IVF process — threatening the long-term standard of care for IVF patients,” Barbara Collura, President and CEO of RESOLVE: The National Infertility Association and leader of the organization’s Fight For Families Campaign, said in a statement shared with Healthline. “There is more work to be done.”
On February 16, the Alabama Supreme Court ruled that frozen embryos conceived via IVF are considered “children” under state law.
The ruling reversed Mobile County Circuit Court Judge Jill Parrish’s decision to dismiss a “wrongful death” lawsuit between an Alabama fertility clinic and hospital and three couples undergoing fertility treatments.
“Man’s creation in God’s image is the basis of the general prohibition on the intentional taking of human life,” wrote Associate Justice Jay Mitchell, quoting a passage from Genesis. “Therefore to kill man is to deface God’s image, and so injury is not only done to man, but also to God… Finally, the doctrine of the sanctity of life is rooted in the Sixth Commandment: “You shall not murder,” the Justice continued.
The decision will allow the couples — James LePage and Emily LePage, William Tripp Fonde and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne — to sue the Center for Reproductive Medicine and the Mobile Infirmary Association for the death of their embryos under Alabama’s Wrongful Death of a Minor Act.
The couples will seek damages for the loss of their frozen embryos.
The couples’ embryos were accidentally destroyed after a hospital patient wandered into the cryonursery where they were being preserved. The patient removed the embryos from the freezer and dropped them on the floor after they freeze-burned their hand, according to the ruling.
“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed,” the Alabama justice wrote.
“Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” he continued.
In a statement provided to Healthline, Kelly Baden, vice president for public policy at the Guttmacher Institute, called the ruling “radical.”
“The Alabama ruling that embryos have the same legal rights as a person shows that our fundamental rights and bodily autonomy have been upended by the overturning of Roe v. Wade,” Baden said.
“This radical concept of personhood has long been championed by the anti-abortion movement and is now one step closer to becoming reality. The potential impacts are vast — your ability to build a family, continue a healthy pregnancy, or choose abortion are all connected; judicial and legislative attacks on one impact all,” she noted.
The Court’s decision had significant implications for people undergoing IVF treatments in Alabama who have the option to destroy their frozen embryos.
After the ruling passed, several clinics paused fertility treatments to avoid potential civil and criminal liability. Despite the new law providing legal protection for IVF providers, a gray area around the concept of “personhood” remains.
With IVF, patients undergoing treatment may produce multiple viable embryos depending on how many eggs are successfully fertilized with sperm.
The viable embryos are frozen until the patient undergoes implantation. A patient only needs one successful embryo transfer to become pregnant but may choose to freeze any remaining embryos for subsequent pregnancies.
Patients have medical autonomy over their embryos, meaning they have the right to decide whether to continue storing the embryos, discard them, or donate them to research.
Yet Alabama’s strict abortion ban prohibits abortion during all stages of pregnancy unless deemed medically necessary, which experts warn could seep into IVF treatments and affect a person’s right to destroy their frozen embryos.
The Medical Association of the State of Alabama had warned about the consequences for fertility treatments that could result if the state’s wrongful death statute was upheld in the lawsuit.
“The potential detrimental impact on IVF treatment in Alabama cannot be overstated,” according to a brief filed by the medical group.
“The increased exposure to wrongful death liability as advocated by the Appellants would – at best – substantially increase the costs associated with IVF. More ominously, the increased risk of legal exposure might result in Alabama’s fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine,” the group wrote.
Nadya Okamoto, a reproductive rights activist and period care expert said the ruling carries significant implications that reverberate across multiple factors, including:
- trust between patients and physicians
- financial burden of embryo freezing
- heightened legal risk faced by IVF clinics
“While I hold onto hope for the development of bipartisan relationships amid these critical dialogues surrounding reproductive health and rights, I am deeply troubled by the fundamental disagreement regarding the characterization of frozen embryos,” Okamoto told Healthline.
“Viewing them as children and advocating for their treatment as such introduces a dangerous distraction into the discourse, diverting attention from other pressing issues at hand.”
Alabama’s near-total abortion ban took effect after the U.S. Supreme Court overturned Roe v. Wade in June 2022.
If other states with strict abortion bans were to declare that embryos are legally people, the ethical implications for fertility patients and their cryogenically stored embryos cannot be overstated.
Pro-choice advocates and health experts have expressed concern about the implications for fertility treatments since those who are anti-abortion say that life begins at conception.
Baden said that anti-abortion groups will only continue to try to restrict reproductive rights.
“We’ve already seen that overturning Roe was not the end goal of the anti-abortion movement and their allies in legislatures and courts,” Baden said.
“Now, the devastating consequences are becoming clearer and touch on every aspect of our reproductive lives — whether and how someone can become pregnant using IVF, whether they can prevent pregnancy using hormonal contraception, whether they can continue a pregnancy when facing obstetric complications in a state hostile to abortion rights, and whether they can choose abortion,” she added.
To help protect the statutory rights of fertility patients and physicians, democrats Sen. Tammy Duckworth of Illinois and Rep. Susan Wild of Pennsylvania recently introduced the Access to Family Building Act of 2024.
But experts say the fight for reproductive rights is far from over.
“Patients and providers in Alabama, and across the country, want and deserve the protected right to build families,” Collura said.
“Recent polls found that 81% of Alabama GOP primary voters support the state legislature in passing a new law to protect IVF services and clinics in the state, while 85% of American voters believe in increasing access to fertility treatments,” she noted.
Alabama lawmakers passed a bill into law that would protect IVF providers from liability after the state’s Supreme Court ruled last month that frozen embryos are “children” under the Wrongful Death of a Minor Act.
The ruling had reversed a decision by a lower court judge that dismissed a wrongful death lawsuit between three couples, a fertility clinic, and a hospital. The couples’ embryos were destroyed when a patient wandered into the cryonursery and dropped them on the floor.
The Court’s decision had significant implications for fertility patients in Alabama where some fertility clinics paused IVF treatments. Some clinics will resume fertility treatments but legal challenges may still lay ahead.
Health experts and pro-choice lobbyists are working hard to protect the rights of fertility patients and providers.
