Alabama IVF Protection Bill Will Reopen Clinics But Limit Patients’ Rights

The Alabama legislature on Wednesday passed legislation aimed at making it possible to reopen fertility clinics in the state without the specter of crippling lawsuits.

But the hastily drafted measure does not address the legal question that led to clinic closures and sparked a stormy and politically tense national debate: whether embryos that have been frozen and stored for possible future implantation have the legal status of human beings.

The Alabama Supreme Court reached that conclusion last month, in the context of a lawsuit against a mobile clinic brought by three couples whose frozen embryos were inadvertently destroyed. The court ruled that under Alabama law, those embryos should be considered persons and that the couples were entitled to punitive damages for the wrongful death of a child.

Legal experts said the bill, which Gov. Kay Ivey quickly signed into law, is the first in the country to create a legal moat around embryos, blocking lawsuits or prosecutions if they are damaged or destroyed.

But while the measure provides relief to infertility patients whose treatments have been abruptly stopped, it will do so at the cost of limiting their ability to sue when embryo mishaps occur. Such limitations in a field of medicine with limited regulatory oversight could make the new law vulnerable to court challenges, experts said.

Here are answers to some key questions:

Creates two levels of legal immunity. If embryos are damaged or destroyed, direct providers of fertility services, including doctors and clinics, cannot be sued or criminally prosecuted.

Others that handle frozen embryos, including shippers, cryobanks and manufacturers of devices such as storage tanks, have more limited protections, but they are still important. Patients can sue them for damaged or destroyed embryos, but the only compensation they can receive is reimbursement for costs associated with the IVF cycle that was affected.

It may have some benefits. The legal shield protecting fertility providers also includes people “receiving services,” which appears to extend to patients undergoing IVF.

Alabama patients would have “a cone around them as they undergo IVF and how they treat their embryos,” including donating frozen embryos for medical research, discarding them or choosing not to be implanted with those who have genetic abnormalities, he said Barbara Collurapresident of Resolve, a national group representing infertility patients.

Those shields could be enormously significant given the recent ruling by the State Supreme Court, the first to affirm that life begins at conception; not only inside the uterus, but also outside the uterus, in a fertility laboratory.

“So far, no State has declared that the embryos are human. And once you declare them to be human, there is a lot more damage available,” he said Benjamin McMichael, an associate professor at the University of Alabama School of Law who specializes in health care and tort law. “So this is the first time we’ve needed a bill like this because we’ve always treated embryos as property at best.”

The statute does not address everyday medical malpractice claims. If an infertility patient has a dangerous ectopic pregnancy because a doctor mistakenly implanted an embryo in her fallopian tube, she can still sue for negligence, McMichael said. But between her damages, she said, she cannot claim the destroyed embryo.

“The bill does not establish liability or provide a vehicle for injured parties to hold others accountable,” he said. “It only confers immunity.”

Other legal experts said the lines drawn by the legislator were subject to controversy. Judith Daar, Dean of Northern Kentucky University’s Salmon P. Chase College of Law and an expert in reproductive law offered the example of an embryologist who changes or mishandles embryos.

“This bill says there is no recovery for patients for reproductive neglect,” she said. “I don’t think that was the intent, but certainly the plain language of the statute would produce that kind of result.”

Until now, he said, patients haven’t always won these cases, “but here they don’t even have the option to file a claim.”

The measure is largely a doctor protection bill, he added. “I’m not judging that, but it doesn’t really address patients’ needs and, in fact, seems to disenfranchise them,” he said.

To the extent that the threat of legal consequences can modulate behavior, he said, “this bill certainly gives providers more license to worry less about being careful, because there is no liability at stake.”

No, those cases can continue. The new legislation waives any embryo-related lawsuits currently being litigated. However, if patients have not yet filed a claim based on the destruction of their embryos, they will not be able to file one once the bill is signed into law.

No. It completely sidesteps the question of whether a frozen embryo is a person. That ruling, at least in the context of a wrongful death lawsuit, remains in effect in Alabama. Instead of confronting the issue, which has sparked a political storm across the country, lawmakers “are trying to move the needle on the side of responsibility and proposing some very complex and counterintuitive measures,” Daar said.

Resolve’s Ms. Collura said she hopes the move resolves an immediate problem, although it leaves the larger issue up in the air. “Are you going to open clinics? Yes. Does it create other unintended consequences? Yeah.”

Emily Cochrane contributed reports.