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Leaders in the pro-life movement in Alabama want the Legislature to pass regulations for in vitro fertilization that recognize the Alabama Supreme Court decision that gave frozen embryos the legal status of unborn children.
But Republican lawmakers, who control the Legislature, have not committed to any follow-up to an IVF bill passed in March.
That law, which came in response to the Supreme Court ruling, gives IVF clinics immunity from civil or criminal liability for the death of stored embryos. It allows civil lawsuits with limited damages against manufacturers of goods used in IVF.
The new law does not touch on the question of whether the embryos are “extrauterine children,” as the justices ruled.
“What the Legislature did was a stopgap measure,” said Eric Johnston, a Birmingham attorney and president of the Alabama Pro-Life Coalition. “And I don’t blame them for doing it right away because they just could foresee a whole bunch of lawsuits being filed by these billboard lawyers.”
The Legislature moved fast on the immunity bill – it was signed into law less than three weeks after the Supreme Court ruling.
Johnston said the Pro-Life Coalition asked lawmakers to put an expiration date in the bill so they would revisit IVF after some time to research and understand the issues. But the bill had no expiration date.
Now, Johnston and others in the pro-life movement are having trouble finding legislators to support a new bill, or even to study the issues to develop legislation on a complex topic.
Johnston said most people in the pro-life movement do not oppose IVF but want regulations, such as limits on the number of embryos created and a ban on them being used for research.
“I have not gotten any kind of firm information from anyone, any legislator, that they’re considering it,” Johnston said. “I think it really needs to be done. If it’s not done this coming year, then next year. I don’t think it ought to be put off indefinitely.”
The leader of the Alabama House Democrats, on the other hand, said he will sponsor a bill to say embryos held in storage are not considered unborn children, the opposite view of the Supreme Court ruling.
Rep. Anthony Daniels, D-Huntsville, sponsored the same bill this year but it did not advance. Republicans hold three-fourths of the seats in the State House.
“I said last (session) I didn’t feel that the immunity bill was going to solve the problem,” Daniels said. “Which it did not. But I know we had to do something. And I think that that something was really nothing.”
IVF services remain available in Alabama. Some clinics that had paused services because of the court ruling resumed after the immunity law passed.
Still, Daniels said he hears from people seeking IVF services outside the state or considering a move to another state because of the uncertainty resulting from the Legislature’s failure to address the key question.
Daniels’ bill introduced in February said, “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.”
Daniels said he would sponsor the same bill when the Legislature convenes again in February. He said he is open to other proposals.
“I’m not saying that my idea is the final and best idea,” Daniels said. “But I haven’t seen one that solves the problem.”
IVF is a series of procedures that involves the fertilization of an egg with sperm outside a woman’s body to create an embryo, which is then transferred into the uterus. It can help couples who have been unable to conceive children because of health conditions and other reasons become parents for the first time or expand their families.
Medication is used to stimulate the woman’s ovaries before the retrieval of eggs. The number of eggs retrieved varies but can typically be a dozen or so.
Those that are successfully fertilized become embryos. Evaluations can determine the embryo most likely to result in a successful pregnancy. That embryo is transferred to the woman’s uterus, typically about five days after fertilization. The remaining embryos can be frozen for possible use later.
In 2021, 86,146 infants born in the United States were conceived through the use of IVF or other assisted reproductive technology, according to the U.S. Department of Health and Human Services, 2.3% of all births.
In February, the Alabama Supreme Court ruled in favor of three couples who filed lawsuits against an IVF clinic in Mobile after a patient wandered into the clinic, dropped their frozen embryos, and destroyed them. The justices ruled that the frozen embryos were unborn children under Alabama’s Wrongful Death of a Minor Act, meaning the couples could collect punitive damages for their deaths.
Some IVF clinics in Alabama paused services because of the legal liability resulting from the decision.
The Legislature quickly passed a bill granting immunity after patients and IVF doctors came to the State House to rally for a bill they said was needed to restore services.
The bill says, “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.”
Dr. Randy Brinson, president of the Christian Coalition of Alabama, said even those who reject the idea that embryos should have the legal status of unborn children can recognize the conflict between the immunity law and the court ruling.
“That’s going to have to be reconciled at some point,” Brinson said. “And we’re hoping that people will be informed and educated on that as they go forward.”
Brinson said, so far at least, it has been hard to find lawmakers willing to tackle the topic.
“We haven’t had a lot of success with that just yet because of the proximity to the election and this being such a volatile issue for both sides, the misunderstanding and the politicization of the issue,” Brinson said.
Brinson, a gastroenterologist who has led the Christian Coalition since 2006, said he is still talking to lawmakers. He said the premise of the Supreme Court ruling is sound because the stored embryos contain all the genetic material of life.
“It’s not an egg,” Brinson said. “It’s not sperm. It’s not any of those type of things. It has the full component of life.”
Brinson said he believes there is a path to legislation that will recognize that and allow IVF services to continue.
“The idea is again just to limit the amount of embryos you’re creating so you don’t have all these different problems with all the liability issues that deal with the destruction of life,” Brinson said. “That’s the issue. I think the first hurdle is going to be getting the Legislature to understand that passing a statute alone does not change the issue that was determined by the Supreme Court.”
Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine, said it would be a mistake for lawmakers to pass legislation based on the Alabama Supreme Court ruling.
“In order to have good policy making, you have to start with a recognition of reality,” Tipton said. “The Alabama Supreme Court can say that a frozen, fertilized egg is the same as a baby. But anyone who looks at them will know that’s not true.
“And so, if you’re making policy based on something that’s not true, your policy is not going to work.”
Tipton said it defies biology to claim that an embryo held in storage is an unborn child.
“To try to argue that’s the same thing as a living baby and should be treated the same way makes absolutely no sense,” Tipton said. “You can’t put a baby in a freezer and have it survive. You can put a fertilized egg in a freezer and have it survive.”
Sen. Tim Melson, R-Florence, a physician who sponsored the immunity bill that passed this year, said he does not plan to bring legislation next year but expects someone will.
Rep. Terri Collins, R-Decatur, who sponsored the immunity bill in the House, said she has no plans to bring a bill. In 2019, Collins was the sponsor of the Human Life Protection Act, which banned abortions in Alabama, with the only exception to protect the mother from serious health risks.
House Speaker Nathaniel Ledbetter, R-Rainsville, said lawmakers will protect the availability of IVF but did not say he expects legislation next year.
“IVF is legal and accessible in Alabama,” Ledbetter said. “We will ensure that remains the case in our state, and we appreciate the work of President Trump and Senator Britt to ensure that remains the case nationwide.”
Sen. Katie Britt, along with Sen. Ted Cruz of Texas, has proposed the IVF Protection Act, which would make states that ban IVF ineligible for Medicaid. The three-page bill describes IVF as a safe and reliable way “for millions of aspiring parents to experience the miracle of childbirth.” It does not address the issue of the legal status of embryos. Democrats in Congress also have an IVF bill.
Johnston, the president of the Alabama Pro-Life Coalition, said he believes IVF regulation is best done on a state-by-state basis, the same as abortion restrictions now that Roe v. Wade is no longer in place. Alabama has a strict ban on abortion, as well as a constitutional amendment approved by 59% of voters in 2018 that says the state recognizes the rights of unborn children.
“There’s no federal law on this,” Johnston said. “And some states would not have a constitutional law like we have and a Supreme Court saying that unborn child embryo was a person in the meaning of law.
“So, we’re dealing with Alabama law here. It doesn’t have any effect on any other state or federal law. And I don’t really see Congress doing anything with it because it would vary from state to state, just like the abortion issue does.”
Sen. Larry Stutts, R-Sheffield, an obstetrician/gynecologist, was the only senator to vote against Alabama’s immunity bill because he said the immunity it gives is too broad.
Stutts said he has delivered many IVF babies and referred many patients to IVF services. Stutts said he supports IVF but said the process often involves creating more embryos than are necessary, adding to the dilemma of how to use the ones not transferred.
“There’s a moral and an ethical way to do IVF,” Stutts said. “And what is commonly done now doesn’t always meet that criteria.”
Stutts sponsored an IVF bill in February, but it did not pass. It said IVF doctors and clinics had “criminal and civil immunity to the extent the individual or entity follows commonly accepted practices of providing in vitro fertilization services.”
“I think there is a commonsense but still ethical and moral solution to it,” Stutts said.
Tipton, the advocate for the American Society for Reproductive Medicine, said government should not impose regulations on decisions that he said should be between patients and their doctors, such as how many embryos are created for IVF.
“During the course of IVF treatment, you have more than one egg, you have more than one embryo because humans are inefficient reproducers and most of those fertilized eggs will not become children,” Tipton said.
“It’s a scientific reality. Some of them clearly have some genetic flaws or chromosomal abnormalities that can stop it. Some of them, we don’t know real well. So because of that, it requires multiple eggs and embryos.”
Tipton said the best practices now are selection of the best embryo for implantation and freezing and storage the others if that is what the patient chooses. He said that is the safest and most effective approach.
“Because a minority of people have an extreme view that is incorrect scientifically they shouldn’t be able to impose their moral views on everybody else,” Tipton said. “If a patient wants to fertilize one egg at a time, transfer one embryo at a time, they can absolutely do that. What they can’t do, is impose that on everybody else.”
Brinson said he believes Alabama law can appropriately regulate IVF to align with the court ruling.
“I think reason should prevail in this rather than emotion, where we could also deal with the issue as far as the constitutionality of life and personhood of the embryo and at the same time accommodate those who are pursuing IVF,” Brinson said.
“We’re just going to have to win the court of public opinion on this,” he said. “Because right now we need to make sure people understand the status quo is not palatable. It’s not tenable.”
This story was corrected to give the correct name for the American Society for Reproductive Medicine.
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