Alabama Passes IVF "Fix" After State Supreme Court Ruling
Is SB 159 A Band-Aid? Or A Solution?
In the wake of the controversy stirred by the Alabama State Supreme Court ruling1 that a litigation could proceed under the state’s Wrongful Death Of A Minor statute2, the Alabama legislature, as many expected, passed a legislative “fix” to the dilemma potentially presented to in vitro fertilization clinics by the ruling.
On Wednesday, the State of Alabama passed legislation providing civil and criminal immunity to in-vitro fertilization (IVF) clinics for death or damage to embryos, which could be defined as children under the state's wrongful death statute, according to the Alabama Supreme Court.
Readers will recall that the State Supreme Court ruling in the LePage case explicitly affirmed the rights of unborn children as stated in the Alabama State Constitution, and also opened the way to extend those rights to embryos conceived and stored outside the womb—fundamentally asserting personhood for those embryos.
The establishment of personhood for a new human being has always been the crucial question in the abortion debate, and remains the central question after the Dobbs ruling.
This question comes back around in LePage, with even greater relevance, as the case itself encompasses a broader conceptualization of reproductive rights than abortion does.
A key factual point of the LePage case must be understood: the case itself centers on the accidental destruction of frozen embryos stored by the Center for Reproductive Medicine as part of its routine procedures for providing fertility treatments to women.
The plaintiffs allege that the Center was obligated to keep the cryogenic nursery secured and monitored at all times. But, in December 2020, a patient at the Hospital managed to wander into the Center's fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient's hand, causing the patient to drop the embryos on the floor, killing them.
Unlike an abortion, where the declared intent of the procedure is to terminate the embryonic life within the womb, no such intent was in evidence here. Indeed, as the embryos were potentially to be implanted in the women plaintiffs to the case, if there was any formed intent by any named actor it was to preserve and sustain said embryonic life.
When the plaintiffs filed a wrongful death claim against the Center for Reproductive Medicine, the legal status of the personhood of the accidentally destroyed embryos was brought front and center into the Alabama courts. Regardless of which way the courts ruled, the ruling necessarily would establish a state-level precedent on the personhood of the unborn.
Immediately after the court’s ruling, Democrats in the Alabama legislature were proposing legislation to explicitly reject any notion of personhood for embryos stored at IVF clinics.
Alabama Democrats are currently preparing legislation aimed at reversing the Alabama Supreme Court’s ruling.
House Minority Leader Anthony Daniels, a Democrat, introduced legislation to clarify that a “human egg or human embryo that exists in any form outside of the uterus shall not, under any circumstances, be considered an unborn child” under state law.
“This is just the first step in unwinding this predicament our state has placed itself in,” Daniels said.
However, it would be a matter of constitutional interpretation whether Daniels’ proposed legislative remedy would be sufficient. The Alabama State Constitution contains a section on “The Sanctity of Unborn Life”, and, as was noted in LePage, explicitly affirms the rights of the unborn child.
Article I, § 36.06(b), of the Constitution of 2022 "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate."
Perhaps more pertinent to the proposed legislation articulated by the Alabama House Minority Leader, however, is Article 1 §36.06(a), which explicitly commits the Alabama state government to protect the sanctity of unborn life.
This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.
Will that constitutional language be a bar to declaring frozen embryos to not be “unborn children”? Until the law is passed and then litigated, there is no way to fully answer that question.
The law which was ultimately passed, Senate Bill 1593, dodges the personhood question altogether by simply establishing immunity for IVF clinics.
Section 1. (a) Related to in vitro fertilization and notwithstanding any provision of law, including any cause of action provided in Chapter 5 of Title 6, Code of Alabama 1975, 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.
Left unresolved, of course, is whether such a grant of immunity impairs the inalienable rights of the unborn child, which LePage affirmatively declared embryos stored in cryogenic nurseries to be.
The great unanswered question of this legislation is whether it is the beginning of a pathway to balancing the personhood—and thus the inalienable rights—of the unborn child with the legitimate rights of bodily autonomy for women, rights which predate the 1973 Roe v Wade abortion decision.
Whether this law is the start of a much needed political and legislative debate on the issues brought forward by acknowledging the undeniable personhood of the unborn child is a question that cannot be answered at this time, and I will not attempt to answer it.
Politically, it makes sense for Republicans to pass this legislation and to do so quickly, if for no other reason than to deny Democrats an easy talking point during the elections this fall. We should not presume that what makes political sense for Republicans is inherently good or even appropriate legislation. It is at best inevitable legislation, and we will learn its consequences only through the passage of time.
Is the Alabama law a perfect solution? No. Because it ignores the rights of the unborn and does not explicitly even speak to bodily autonomy it fails to address the key issues pertaining to the unborn. It potentially also gives IVF clinics blanket immunity even from negligence, which opens the door to further concerns regarding a clinic’s duty of care to the patient as well as to the unborn children created during its procedures. It completely ignores the issue of what should be done with the “excess” embryos IVF procedures typically create.
What it does do—and all sides I hope will agree on this—is affirm that, inasmuch as the goal of reproductive technologies such as IVF is to facilitate preganancy, childbirth, and family formation, it ill becomes the state to place extraordinary burdens upon them or to subject them to arbitrary and capricious changes in the particulars of the law.
SB159 is not a true legislative solution, because of its obvious and glaring deficiencies. It is a legislative Band-Aid that seeks to limit the collateral impact of the LePage ruling while leaving the rest of the legal terrain untrammeled for a more comprehensive solution down the road. Whether the Alabama legislature will have the integrity to work on such a solution, and whether other state legislatures will do likewise, remains very much a question.
Like most legislation, it leaves many issues unresolved, and ultimately merely punts on the important issues brought forward by LePage. Whether that makes it good or bad legislation I leave to the reader to decide within his or her own conscience.
James LePage and Emily LePage, individually and as parents and next friends of two deceased LePage embryos, Embryo A and Embryo B; and William Tripp Fonde and Caroline Fonde,individually and as parents and next friends of two deceased Fonde embryos, Embryo C and Embryo D v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, SC-2022-0515
Alabama State Legislature. Senate Bill 159. An Act relating to in vitro fertilization. Legiscan.com, 2024. https://legiscan.com/AL/text/SB159/id/2952994
As someone who went through the IVF process to conceive our son, the easiest “solution” to me is for the clinics to only fertilize the number of eggs they plan to implant if successfully fertilized. The hard part for us involved the drugs my wife had to take to stimulate the ovaries to overproduce eggs…my part in the sterile cup was easy and could be done any day of the week. Why not just freeze unfertilized eggs and thaw an appropriate amount to fertilize each time?
The fact that we were creating life in a Petri dish (and I fully believed that) weighed heavily on my soul during the whole process. We were fortunate that one embryo of four successfully developed into our son on the first try. But my mind was always on the remaining embryos as life suspended in a cryogenic state. When we went back in to to try again with the remaining 8 or 9 embryos, some didn’t survive the thawing process and, sadly, none of the remaining viable embryos took. While disappointed, I knew that God was back in control of which infants survived and didn’t…the loss of an IVF embryo being no different than a very early stage miscarriage in terms of faith (obviously not medically).
I just don’t understand the need to overproduce embryos.
SB159 is a specific law applying to clinics dealing with IVF. Peter, can you think of any situations where this could serve as a legal precedent for other types of clinics? For example, a gender-change clinic could argue in court that they didn’t ‘intend’ any harm when they changed sexual aspects of a patient, so the patient can’t come back years later to sue them. It seems to me that SB159 is specific enough to NOT be used as a legal precedent, but your grasp of legal thinking is more comprehensive than mine....