What are Alabama lawmakers proposing to protect IVF?

(MONTGOMERY, AL.) — Alabama state lawmakers introduced three new bills that aim to protect IVF treatments amid intense backlash over a state Supreme Court decision that caused several providers to halt IVF treatment last week. The bills would allow providers who have halted care to resume treatments as soon as the bills become law.

The high court issued a ruling that embryos are children earlier this month, raising questions about potential civil and criminal liability over the mishandling of embryos outside the womb, even if unintentional. The decision has prompted outrage from physicians and patients whose care was halted or delayed until providers receive clarity.

Since the decision was issued, three of the state’s seven IVF providers have stopped providing the treatment, including University of Alabama at Birmingham Hospital, the biggest hospital system in the state. The hospital also announced that it would suspend the transfer of embryos after it was unable to identify shipping companies that are “able and willing” to transport embryos.

The new bills come as Resolve, a national fertility association, announced that “hundreds” of Alabamians are expected to head to the State House on Wednesday, calling action that would protect IVF treatment, according to a statement from the group.

Proposed bills

One of the bills would provide “civil and criminal immunity” to anyone providing goods and services related to in vitro fertilization.

“No action, suit, or criminal prosecution shall be brought or maintained against any individual or entity providing goods or services related to in vitro fertilization except for an act or omission that is both intentional and not arising from or related to IVF services,” the bill says.

The legislation has received support from Republican Gov. Kay Ivey.

“As I said last week, in Alabama, we work to foster a culture of life, and that certainly includes IVF. The Alabama Legislature is working diligently to address this so we can ensure we are protecting IVF and life itself. I look forward to following the legislative process and anticipate I will have a bill at my desk to sign as quickly as the Legislature can get it to me, while also ensuring they have enough time to get it done right,” Ivey said in a statement to ABC News Tuesday.

Last week, state Democrats introduced another bill that says, “Any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being,” according to the bill.

“Any fertilized human egg or human embryo that exists in any form outside of the uterus of a human body shall not, under any circumstances, be considered an unborn child, a minor child, a natural person, or any other term that connotes a human being,” the bill states.

The state Supreme Court’s ruling came as part of a civil lawsuit filed by couples whose embryos were destroyed when someone walked into an IVF clinic and dropped them. The couples filed a wrongful death suit — under a state statute called the Wrongful Death of a Minor — against the clinic, but a lower court threw out the case.

The state Supreme Court then reversed that decision earlier this month.

Could legislation allow IVF treatment to resume?

The Democrat’s proposed bill, HB225, aims to turn back the clock to before the Alabama Supreme Court issued its decision, Joanne Rosen, an attorney and professor at Johns Hopkins University who focuses on reproductive health laws, told ABC News.

With clinics signaling their eagerness to resume care for their patients, Rosen says it is likely providers could resume IVF treatments if either of the proposed bills are passed into law. However, Rosen foresees a potential complication in enacting legislation to protect IVF due to how the state Supreme Court interpreted and expanded the reach of Alabama’s Wrongful Death of a Minor statute.

The court’s decision had drawn on a 2018 state constitution amendment called the Sanctity of Unborn Life Amendment. The constitutional amendment added “a provision that says it’s the state policy to recognize and support the sanctity of unborn life and the rights of unborn children,” according to Rosen.

“Nothing in that constitutional amendment specifically says that the sanctity of life and the rights of unborn children extends to in vitro embryos, but the Alabama Supreme Court interpreted that constitutional amendment as protecting the sanctity of unborn life, whether it is in utero or whether it is in vitro,” Rosen said.

“I think that it is a very far-fetched argument because the Constitution itself does not define what was meant by the ‘sanctity of unborn life’ for the rights of unborn children, and that would be really an unprecedented interpretation of that sanctity of life amendment,” Rosen said.

In relying on the state constitution in its decision, the court could potentially throw out new laws that are not in line with that interpretation, making it difficult for lawmakers to pass a new bill that would protect IVF. Any new legislation to protect IVF could likely end up before the courts again, since new laws don’t put an end to potential lawsuits, Rosen said.

“If that interpretation of the Alabama constitution is correct, then it would supersede any Alabama statute that attempts to say we are not providing this protection to in vitro embryos,” Rosen said.

“If it were to be that meaning, then state-level legislation wouldn’t be able to override it, because the Constitution is the supreme law that is used — laws have to comply with the Constitution,” Rosen said.