"It does not protect parents": Experts say bills to protect IVF in Alabama isn’t enough

Two weeks after facing a backlash when Alabama’s Supreme Court ruled frozen embryos are legally children, Alabama lawmakers scrambled to put together a new legislation to help protect in vitro fertilization (IVF) clinics from civil lawsuits and criminal prosecution. As Salon previously reported, the February ruling unleashed chaos for families as clinics across the state paused IVF treatments due to concerns about how and if embryos can be discarded, and what happens if transfers fail.

It is common for multiple eggs to be transferred and fertilized because not all transferred embryos turn into viable pregnancies. IVF patients usually have a few options for their fertilized eggs that haven’t been transferred: to discard them, donate them to research, donate them to another couple or keep them for a future pregnancy. But the Alabama Supreme Court’s ruling raised questions IVF clinics and patients had never asked before: Could they be sued for manslaughter for discarding frozen embryos? Could patients be sued or criminally prosecuted if their own embryo transfers failed?

But last week, Alabama legislators in both chambers passed bills that would give civil and criminal immunity related to IVF providers or those “receiving goods or services related to in vitro fertilization; and to provide retroactive effect.” This happened after nearly 200 IVF patients filled the Alabama Statehouse pressuring lawmakers to get IVF services restarted as soon as possible, as reported by NPR. On Tuesday, Committees in the Alabama House of Representatives and the Alabama Senate will gather to debate a legislation to protect IVF providers and patients from civil and criminal prosecution. The next step is to wait for the Republican Alabama Governor Kay Ivey to sign the protections into law. However, as lawmakers gear up to debate the protections, experts tell Salon the bill is “political theater,” and raise concerns about what the bills do and don’t address.

“There is a much easier way to protect IVF, which is to actually create a privacy right for patients who need IVF, and then protect their access to these services,” Daphne Delvaux, an employment attorney and founder of The Mamattorney, a platform educating women on their rights at work, told Salon via email. “Instead, what Alabama did is declare embryos as ‘children’ and then create a law that provides immunity to clinics and providers in cases for wrongful death or harm to an embryo.”

Delvaux said that the laws are “nonsensical” and “contradictory” to each other.

“If clinics cannot be sued for wrongful death of an embryo, doesn't that exactly prove our point? That embryos aren't children,” she said. “Because you can still sue for wrongful death of an actual person.”

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Indeed, a major concern is that the new protections don't address the most problematic part of Alabama’s Supreme Court ruling: that frozen embryos are “extrauterine children.”

The mid-February Alabama Supreme Court ruling came from a pair of wrongful death cases brought by couples whose frozen embryos were destroyed in an accident at a fertility clinic. A patient allegedly removed embryos from the cryotanks at the Center for Reproductive Medicine in Mobile, Alabama, destroying the embryos of the three couples who were the plaintiffs of the case. The majority opinion said that an 1872 statute allowing parents to sue for the wrongful death of a minor applies to “unborn children” — and that there is no exception for “extrauterine children,” such as frozen embryos. In Chief Justice Tom Parker’s concurring statement, he cited the Book of Genesis. It was the first time the state applied legal personhood rights to an embryo outside of a pregnant person’s uterus.

“This is a good way to ensure that patients who are facing infertility will not have their care interrupted or denied, that's the benefit of this bill, to just give some clarity that providers won't flee Alabama and not provide IVF services,” Seema Mohapatra, a health law and bioethics expert at Southern Methodist University, told Salon. “But I think that there's a lot of other legal concerns of leaving that a frozen embryo is an ‘extrauterine child.’”

Mohapatra added that it’s notable that the proposed shield law is the “opposite” of what the plaintiffs wanted in the first place, too, “which was compensation for the fact that their genetic material was destroyed,” she said. “It's an effort to protect the business of IVF and assisted reproduction — not questioning whether an embryo outside the body is a person under Alabama law.”

Delvaux said she believes the new legislation, despite providing civil and criminal immunity to those “receiving goods or services related to in vitro fertilization” leaves mothers vulnerable.

It’s unclear who exactly immunity will be granted to and “whether it only protects against actions by the clinics against the patients,” or “by any third party against the patients.” Legal ambiguity, she said, means that lawsuits will still be brought. She noted that the legislature could have easily written "IVF patients," but chose not to be so specific.

“It also does not protect patients against claims other than wrongful death or damage, like custody claims,” Delvaux said. “This leaves especially women in abusive marriages extremely vulnerable."

When asked what her biggest concern is, she said it’s that mothers could be sued by abusive men for losing a pregnancy in the IVF process.

“These men would sue her for wrongful death, on behalf of the embryo, and a discovery process would open,” Delvaux said, adding the cross-examination would focus on all of a woman’s actions during pregnancy — what she ate, where she went and who she met. “Attorneys charge multiple hundreds of dollars per hour for legal defense.”

This could push these women into bankruptcy, she said, adding that even the threat of these cases could make women scared and “force them to bend to the man's will.”

“Generally, my biggest concern is that it does not protect parents from allegations and attacks by their partners or even other family members,” she said. “There are no protections when a parent decides to abuse the legal system to rob the other parent of agency about whether they want embryos to be implanted.”