Two Alabama couples whose embryos were destroyed at a Mobile hospital are asking a judge to rule a state law shielding in vitro fertilization clinics from lawsuits as unconstitutional.

The law was enacted by the state Legislature last year amid backlash against the controversial Alabama Supreme Court ruling finding embryos have the same legal protections as children under the state’s Wrongful Death of a Minor Act.

“These statutes constitute unlawful attempts at abrogating rights and remedies which were excepted out of governmental power when the People of Alabama voted in November 2018 to amend our Constitution’s Declaration of Rights with constitutional guarantees protecting unborn children,” argued James and Emily LePage and William and Caroline Fonde in the 166-page brief filed Monday in Mobile County Circuit Court.

Lawyers for the couples contend the laws “are violative of Plaintiffs’ fundamental rights, including the right to life, the right to raise and rear children [and] the right to equal protection of Alabama law.”

The attorneys also claim the legislation violated several provisions of the the Alabama Constitution, including the write to remedy and the right to protect the couples’ claims from retroactive legislation.

“Simply stated: the legislature cannot deprive unborn extrauterine children – or their parents – of all the protections of Alabama law, including the remedies afforded by the Wrongful Death of a Minor Act,” the couples stated in the brief.

The Center for Reproductive Medicine and Mobile Infirmary Medical Center were sued for wrongful death, negligence and breach of contract by the LePages, Fondes and Scott Aysenne and Felicia Burdic-Aysenne in separate lawsuits in 2021.

The couples’ embryos were destroyed by a wandering hospital patient who dropped the frozen specimens.

Mobile County Circuit Court Judge Jill Parrish Phillips is being asked by the LePages and Fondes to rule the IVF law is unconstitutional.

She is the same judge that sided against the couples in ruling that frozen embryos are not children, throwing out the wrongful death claim.

“It is clear to this court, based on Alabama’s statutes and case law, that a strong belief in the sanctity of life has not prevented the Alabama Supreme Court from recognizing and upholding our legislature’s clear pattern of using the term “in utero” [emphasis original] when defining the unborn or minor child, including in the context of a wrongful death case,” Phillips wrote in her ruling.

Her decision was reversed in the controversial Alabama Supreme Court ruling.

The high court’s decision drew national headlines and created backlash that included IVF clinics pausing their operations amid fears of being prosecuted.

Meanwhile, the Alabama Legislature passed legislation protecting IVF clinics from legal action.