A growing bipartisan call is surfacing in Alabama long before state lawmakers are scheduled to return to Montgomery next spring: Something must be done to clarify what is and what is not allowed regarding in-vitro fertilization in the State of Alabama.

The latest calls come after a New York Times piece published on Monday highlighted efforts by four of seven fertility clinics in Alabama to move embryonic cells out of the state and have them stored or potentially discarded elsewhere.

The rationale for the effort? To remove the sticky issue of storing embryos in a state where too many legal unknowns loom over a procedure that remains popular among Americans.

“As a fertility lawyer, an IVF mother, I feel the steps made by the clinics to protect their patient’s rights and decision-making authority over their embryos are brave and creative,” said AshLeigh Dunham, a family attorney based in Hoover. “We begged the Legislature to act when the Supreme Court usurped the Legislature’s authority to make laws, but they only created a Band Aid to allow clinics to open.”

She added, “While that is appreciated, it is not permanent and will not help our citizens who are risking IVF stopping altogether.”

The only regulation passed by lawmakers occurred in March after the Legislature quickly moved a bill that granted immunity to health providers if frozen embryos are destroyed during procedures or storage.

That move occurred after IVF was upended in Alabama after the Alabama State Supreme Court determined in February that the state’s wrongful death law applied to frozen embryos used during IVF procedures.

Pass another law

Five months have passed, and nothing else has emerged and the Republican lawmakers who led the immunity bill aren’t saying much.

Efforts to reach State Rep. Terri Collins, R-Decatur, and Sen. Tim Melson, R-Florence, for comment were unsuccessful. Both lawmakers guided the rapid approval of the immunity bill during last spring’s legislative session.

Related content: Alabama lawmakers at an IVF standstill as ‘pro-life’ feud erupts

Democratic lawmakers, who see a political advantage on the issue, say that lawmakers need to act and soon.

“The public was led to believe the immunity bill would solve the problem,” said State Rep. Anthony Daniels, D-Huntsville, who is the Alabama State House Minority Leader. “I knew it wouldn’t solve the problem because it didn’t provide enough clarity. As you’re seeing right now, it’s not really solving the problem long-term.”

Anti-abortion conservatives and the head of the Alabama State GOP say that more clarification is needed on a procedure popular among Americans.

“It’s a thorny issue to deal with,” said Eric Johnston, an attorney who helped draft Alabama’s constitutional language on abortion in 2018, and who is the president of the Alabama Pro-Life Coalition. “I’m not saying they need to do it right now, but at some point, they do need to deal with it.”

Conservative viewpoints

John Wahl, chairman of the Alabama State GOP, said Republicans support IVF and that the procedure is “completely consistent” with the party’s “pro-life and pro-family” platform. He said the party has a problem with the “lack of policy and regulation concerning the process as it pertains to the embryos themselves” which he believes needs to be addressed by state lawmakers.

“Currently, Louisiana is the only state that has a law concerning IVF, which gives personhood status to embryos,” Wahl said. “The Alabama Republican Party believes strongly that IVF can be done while respecting the sanctity of life.”

Not every right-leaning and anti-abortion organization shares that view. The Southern Baptist Convention, during its annual meeting in June, voted to oppose IVF and criticized the procedure for enabling people to have children outside of heterosexual marriage.

But the SBC’s Ethics & Religious Liberty Commission shares Wahl’s views that the Alabama Legislature needs to do more.

Brent Leatherwood, president of the commission, said in a statement that the IVF industry has been “allowed to operate free of oversight and accountability for years.”

He said the reports of clinics transferring embryos to other states is the “inevitable and imminently foreseeable result when political expediency is the driving force behind a decision.”

Leatherwood compared the shipment of embryos to other states with “abortion travel and tourism” and said, “just like those actions, this should be opposed as well.”

“Alabama lawmakers were given the opportunity to truly protect life and they blinked,” he said.

The Christian Coalition of Alabama say there is a place for IVF to assist pregnancies so couples can have families.

IVF is a difficult, lengthy, and expensive treatment that involves the fertilization of a woman’s eggs with sperm in a lab to create a microscopic embryo. The fertilized embryo is then transferred into a woman’s uterus, where it may create pregnancy. IVF pregnancies account for slightly more than only 2% of U.S. pregnancies during a year.

Dr. Randy Brinson, president of the Christian Coalition of Alabama, expressed similar views as Wahl saying that it shouldn’t be considered “onerous” for clinics to protect embryos they are producing and not “discard frivolously.”

“I would push the Legislature to determine what is the best approach and to try and get a lot of people in the profession and in obstetrics and those in the pro-life community and have us come together in (craft) a reasonable legislation going forward that protects the embryos and have it where people could adopt embryos for future pregnancies so those lives are not discarded inordinately,” Brinson said.

Legal challenges

Democratic lawmakers say they plan to bring up legislation of their own, but not what Brinson or Wahl are backing.

Daniels said he wants lawmakers to consider legislation that he sponsored last year that “clearly defines a fertilized embryo as not being a child.”

According to Daniels, clarifying personhood in Alabama would go a long way in removing fear and uncertainty among families and physicians who practice IVF.

Daniels said there are high stakes at play if Alabama doesn’t do more.

“A lot of these things will and have impacted our ability to recruit families to the State of Alabama and retain young people in the State of Alabama who may see this as their last best option if they should have issues having a child,” Daniels said. “We are essentially removing these options off the table. We must address this now.”

Related content: Alabama Democrats at odds over IVF fix: Will embryo ruling require a Constitutional Amendment?

Susan Pace Hammill, professor of law at the University of Alabama School of Law, said the lack of further legislative action beyond the “Band Aid” lawmakers approved in March, leaves too many legal questions unresolved.

“Not wanting to aggravate the Supreme Court or the far-right, they left the question of the embryo’s status open while supposedly shielding the clinics,” Hammill said. “That leaves open the possibility in the future another challenge that could cause what the Legislature did to no longer be effective, or the Supreme Court could rule what the Legislature did was not constitutional.”

She added, “All this creates much uncertainty in a state known for political knee-jerk reactions based on far-right emotional ideology – not exactly where patients, their doctors and providers feel safe storing embryos.”

How to regulate

Brinson said he hopes that a forum next month at Troy University will provide some solutions from academic, legal, medical, and ethical perspectives, and “give advice to the governor and the Legislature on how to move forward” with future IVF regulations.

But Dunham said the entire process is troubling, both in Montgomery and in Washington, D.C., where lawmakers remain at odds over how to proceed with protecting IVF nationwide.

“Regulation of IVF by non-medical legislators is a terrible trending terminology being passed around by lawmakers,” she said. “No other areas of the medical field are regulated by our legislators.”

She added, “It would behoove the Legislature to act according to their constituents and protect IVF statewide. Infertility is growing. The need for (assisted reproductive technology) procedures, especially IVF is increasing. However, due to our Supreme Court, and the current lack of protections enacted by our Legislature, we are at risk of losing IVF altogether.”

Dunham noted the announcement on Monday of the early 2025 closure of Huntsville Reproductive Medicine in Madison, which was named in the New York Times piece as one of three clinics working with a company called ReproTech to move embryos out of Alabama.

A representative at ReproTech could not be reached for comment. An answering machine at the Huntsville clinic indicated they are formulating a plan for the embryos. “Rest assured, they are safely stored at HRM,” the recording says.

A social media post about the clinic’s pending closing says the decision to do so is unrelated to the fallout from the Supreme Court’s decision.

“There are few clinics in Alabama … our legislators must act and protect IVF as soon as possible or access to family building will be severely limited,” Dunham said.