Alabama lawmakers set to finalize IVF legislation, but experts say it’s going to take more work to protect fertility services

CNN, POOL, WBMA

By Lauren Mascarenhas and Isabel Rosales, CNN

Montgomery, Alabama (CNN) — Alabama lawmakers are set to finalize legislation Wednesday to protect in vitro fertilization patients and providers from legal liability, with some clinics poised to lift a hold on certain IVF services prompted by a recent state Supreme Court ruling.

The new legislation does not address the issue of personhood at the heart of last month’s unprecedented ruling in a case stemming from the accidental destruction of frozen embryos at a fertility clinic, and experts say it’s going to take more work to protect fertility services in the state.

The state court ruled frozen embryos are human beings and those who destroy them can be held liable for wrongful death, spurring a national reckoning with reproductive health freedom and IVF access.

Three of the state’s limited pool of IVF providers immediately paused some services, sending some families out of state to access treatment and raising concerns that costs for fertility services would skyrocket.

The Republican-backed legislation, passed in the Alabama House and Senate last week and finalized this week, aims to provide civil and criminal immunity to providers and patients for the destruction or damage to embryos. The legislation will apply retroactively.

“The law does not nullify the Supreme Court’s analysis that says the law ought to treat embryos just like people,” Katherine Kraschel, an assistant professor at Northeastern University School of Law, told CNN on Tuesday.

“There is a lot of ambiguity in the language of the Republican bills that if I was advising a clinic, would give me great pause before resuming treatment,” Kraschel said.

The legislation does not clearly define what falls under in vitro fertilization services, leaving a question around the storage and transportation of embryos, she noted.

Experts have also expressed concern that while the legislation protects providers from liability when it comes to the destruction of embryos, it could also insulate them from standard medical malpractice claims.

The lawmakers who introduced the bills, Rep. Terri Collins and Sen. Tim Melson, noted last week that it was intended to provide immediate relief for families who have lost access to IVF services, while officials consider more permanent solutions.

“This addresses the imminent problem and that is what I am trying to do today. Do we need to have the longer decision? Yes, we do,” Collins said Thursday.

“This is the temporary fix,” Melson said Thursday during discussion about the legislation on the floor. “This gets the ladies now currently in the situation, that are in limbo, back in the clinic.”

While Alabama Democrats backed proposed legislation that would establish in the state constitution that an extrauterine embryo is not a person, Republicans hold a majority in both the state House and Senate.

When will services start up again?

Some providers that paused some IVF treatments in the wake of a state Supreme Court ruling say they plan to resume care once Gov. Kay Ivey signs the bill into law.

Alabama Fertility, in Birmingham, which canceled at least 35 frozen embryo transfers in the 12 days since the clinic paused IVF treatments, plans to resume treatments as early as Thursday or Friday, according to Dr. Mamie McLean. McLean says the clinic already has patients “slated” to continue treatments.

“We are so hopeful that this bill will provide immediate, complete, and permanent access to IVF treatments in Alabama,” she said, “We cannot wait to celebrate with our patients. Honestly, we can’t wait to do the first embryo transfer, we can’t wait to see the first positive pregnancy test … it holds even more meaning than it did before.”

McLean joined families and other IVF advocates at the Alabama State House last week to call for an immediate restoration of services, as lawmakers inside rushed to push through legislation that would protect them.

“We appreciate the efforts from the legislators to push through a bill that meets the needs of all of the stakeholders involved in IVF treatments in Alabama,” said McLean. “We are grateful that they have heard our voices. We are proud of our patients who have bravely shared their stories and are so impressed with the advocacy efforts on behalf of infertility patients.”

The University of Alabama at Birmingham, the state’s largest health care system, also paused some fertility services after the state court’s decision.

The system is required to follow that decision “unless and until it reconsiders its opinion, or the Alabama Legislature addresses it through legislation and a bill is signed into law,” University of Alabama at Birmingham spokesperson Savannah Koplon told CNN on Tuesday.

The American Society for Reproductive Medicine released a statement Thursday warning that without legislation to address the issue of whether a fertilized egg is legally considered a person, IVF providers are still vulnerable.

“We believe these bills will not provide the assurances Alabama’s fertility physicians need to be confident they can continue to provide the best standard of care to their patients without putting themselves, their colleagues, and their patients at legal risk,” the statement read.

The case at the heart of the ruling

The Alabama Supreme Court ruling stems from two lawsuits filed by three sets of parents who underwent IVF procedures to have babies and then opted to have the remaining embryos frozen.

The parents allege that several frozen embryos were dropped on the floor and destroyed in 2020 at an Alabama fertility clinic and sued the clinic. A trial court initially dismissed the claims, but the state Supreme Court ruling reversed that decision.

A fourth lawsuit has since been filed against the defendants in the case.

Though the new legislation applies retroactively, it likely won’t impact the case, as the Alabama Constitution holds that new legislation cannot be applied to active cases.

Groups representing defendants in the lawsuits that culminated in the Supreme Court ruling that frozen embryos are children have filed an application asking the court to rehear the case, according to online records from the Alabama appellate courts.

The group is asking the court to reconsider their ruling, though the justices could take more than six weeks before deciding whether to grant the application to rehear the case, an Alabama court source told CNN.

Some legal experts are skeptical that the court will agree to rehear the case.

Even with some clinics planning to resume services, the court’s decision may still have an impact on Alabama families going forward, Kraschel said.

“Courts, especially in Alabama, could cite the Alabama Supreme Court decision to treat embryos as people in other areas of the law as well,” she said.

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