Bill to protect IVF will reopen clinics
The Alabama Legislature on Wednesday is expected to pass legislation that will make it possible for fertility clinics in the state to reopen without the specter of crippling lawsuits.
But the measure, hastily written and expected to pass by a huge bipartisan margin, does not address the legal question that led to clinic closings and set off a stormy, politically fraught national debate: whether embryos that have been frozen and stored for possible future implantation have the legal status of humans.
The Alabama Supreme Court made such a finding last month, in the context of a claim 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 regarded as people, 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 has said she will sign, would be the first in the country to create a legal moat around embryos, blocking lawsuits or prosecutions if they are damaged or destroyed.
But although the measure is likely to bring relief to infertility patients whose treatments had been abruptly suspended, it will do so in exchange for limiting their ability to sue when mishaps to embryos do occur. Such constraints in a field of medicine with limited regulatory oversight could make the new law vulnerable to court challenges, the experts said.
Here are answers to some key questions:
• What does the measure do? It creates two tiers of legal immunity. If embryos are damaged or destroyed, direct providers of fertility services, including doctors and clinics, cannot be sued or prosecuted.
Others who handle frozen embryos, including shippers and cryobanks, have more limited protections. Patients can sue them for damaged or destroyed embryos, but the only compensation will be reimbursement for the costs associated with the IVF cycle that was impacted.
• Does the law benefit patients beyond the possible reopening of clinics?
It may have some benefits. The legal shield that protects providers of fertility services also includes individuals “receiving services,” which appears to extend to patients going through IVF.
Alabama patients will have “a cone around them as they do IVF and how they treat their embryos,” including donating frozen embryos to medical research, discarding them or choosing not to be implanted with those that have genetic anomalies, said Barbara Collura, the president of Resolve, a national group that represents infertility patients.
That can be significant given the state Supreme Court's recent ruling.
“Until now, no state has ever declared embryos to be humans. And once you declare them to be humans, a lot more damages become available,” 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 ever needed a bill like this because we've always treated embryos at most as property.”