Alabama Protects IVF Patients and Providers Post-State Supreme Court Ruling

On Wednesday, Alabama Governor Kay Ivey signed a bill protecting in vitro fertilization (IVF) patients and providers from liability if the embryos created during the process are damaged or destroyed.

The development was prompted by a recent Alabama Supreme Court ruling that frozen embryos are people and that people who destroy such embryos can be held liable. In the wake of that decision, various Alabama medical providers stopped all IVF treatments, unsure of the legal ramifications. Unviable and leftover embryos are often discarded during the IVF process. After Ivey signed the bill, the University of Alabama at Birmingham stated that it was “moving to promptly resume” treatments.

Specifically, the law provides both criminal and civil immunity for death or damage to an embryo related to IVF. It also protects manufacturers of goods used to facilitate IVF or the transport of embryos from criminal charges.

Absent from the law, as the ABA Journal notes, is a stance on whether or not frozen embryos are people. An Alabama constitutional amendment from 2018 protects the “rights of unborn children,” though questions remain as to when life begins under Alabama law.

The Alabama Supreme Court case, released on February 16, 2024, involved three couples whose frozen embryos were destroyed when a patient at the hospital where the embryos were stored removed several embryos from the cryogenic nursery, dropping them when they burned the patient’s hand.

The couples brought suit under Alabama’s Wrongful Death of a Minor Act, § 6-5-391, a law first enacted in 1872. The Alabama Supreme Court found that the Wrongful Death of a Minor Act applied to all unborn children without limitation, writing “Unborn children are ‘children’ under the Act, without exception based on developmental state, physical location, or any other ancillary characteristics.” The court cited two of its previous decisions in which it held that an unborn child qualifies as a minor child under the Act. (Mack v. Carmack, 79 So. 3d 597 (Ala. 2011); Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012)). The court further cited dictionary definitions of “child” both in recent times and from 1864, just before the Act first became law, stating that all definitions encompassed unborn children. It also noted that nothing in the Act required that only unborn children physically “in utero” be considered minor children.

By the time Alabama’s legislature met to vote on the issue on February 29, almost half of the seven clinics in Alabama had paused IVF treatments and three of the remaining clinics had stopped disposing of frozen embryos. The vote to protect IVF patients and providers was almost unanimous.

Additional Reading

Alabama governor signs IVF bill giving patients, providers legal cover, ABA Journal (March 7, 2024)

Alabama governor signs IVF bill giving immunity to patients and providers, NPR (March 6, 2024)

LePage v. Center for Reproductive Medicine, P.C. (Ala. 2024)

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