Alabama legislature passes protections for IVF providers

The Alabama House of Representatives and state Senate both passed bills Thursday giving in vitro fertilization (IVF) service providers civil and criminal immunity from prosecution or legal action related to the “goods and services” they provide, just weeks after the state’s Supreme Court ruled that frozen embryos can be considered children under the law.

The bill passed the Alabama House of Representatives with 94 yeas, six nays and three abstentions. It will now head to the Alabama Senate. In the state Senate, a bill essentially identical to the one in the House passed unanimously with 34 yeas. The two chambers now just have to prepare the enrolled bill for Alabama Gov. Kay Ivey (R), who has indicated she will sign the bill into law.

The legislation would “provide civil and criminal immunity to persons providing goods and services related to in vitro fertilization in certain circumstances; to provide retroactive effect; and to provide for the repeal of the act on a certain date.”

This exemption does not apply in situations that involve “an act or omission that is both intentional and not arising from or related to IVF services.”

This comes after several fertility clinics, including the largest health care provider in Alabama, paused IVF services due to concerns of legal action in the event that frozen embryos stored at their facilities were destroyed.

The Alabama Supreme Court ruled earlier this month that an 1872 law that allows families to sue for damages in the event of a wrongful death of minor did not have any exemptions, explicit or unwritten, for frozen embryos.

While the court acknowledged concerns that allowing embryos to be considered children would make IVF services more difficult to provide in Alabama, it stated in its ruling that those issues were for the state Legislature to address.

This cleared the way for patients whose embryos had been accidentally destroyed at an Alabama fertility clinic to sue for damages, after a lower court had previously dismissed the lawsuit upon finding frozen embryos did not meet the definition of a “‘person’ or ‘child.'”

The high court’s ruling and the subsequent pause on services has led members of the GOP to scramble, as they both agree with the court finding embryos can be considered children while opposing the inadvertent restrictions the decision placed on IVF access.

Fertility specialists said Thursday that the legislation passed in Alabama didn’t go far enough.

“We are pleased that the members of the Alabama General Assembly have responded to that advocacy and have repeatedly stated their interest in providing a legislative solution. However, the legislation we’ve seen this week as a proposed solution – even as most recently revised – is inadequate insofar as it fails to correct the Supreme Court’s nonsensical stance that fertilized eggs are scientifically and legally equivalent to children,” Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine said in a statement. 

“Therefore, 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.”

Senate Democrats earlier this week attempted to force a vote on a bill that would similarly protect access to IVF services, but Republicans blocked it, claiming the legislation was full of “poison pills” and overreached its aims.

Updated at 6:20 p.m.