April 10, 2024

After Supreme Court decision, Alabama protects IVF – but has it gone too far? 

Alabama’s legislature and governor moved quickly to protect IVF after its Supreme Court startled the nation by ruling that embryos were “extrauterine children”. This left IVF clinics exposed to lawsuits for wrongful death and they all suspended operations. 

A bill passed earlier this month extends criminal and civil immunity to IVF clinics for their operations. Manufacturers of products used in IVF treatment will have criminal immunity, but not civil immunity, if embryos are destroyed. They would be required to compensate for damages, based on the cost of the fertilization treatment paid by the family. 

However, the bill does not address the issue of when life begins. “We believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own,” said Mobile Infirmary Health and the Center for Reproductive Medicine in a joint statement.Some legislators are pressing for another constitutional amendment (Alabama already has the longest constitution in the world) to give IVF complete legal clarity. 

The best informed analysis of Alabama’s jury-rigged legislation came from Yuval Levin, the editor of National Affairs, and O. Carter Snead, a law professor at the University of Notre Dame, in an article in The Atlantic. They observed that for decades the IVF industry has used abortion rights as a shield against public scrutiny and regulation. The Alabama law makes things worse: 

The legislature quickly and overwhelmingly passed (and the governor immediately signed into law) a bill that created blanket civil and criminal immunity for any person or entity who causes “damage to or death” of an embryonic human being when “providing or receiving services related to in vitro fertilization.” In its haste, the legislature created a bizarre anomaly. No other branch of medicine, and no other facet of the health-care industry, enjoys such freedom to act with impunity.

The result was perverse but painfully familiar: Policy makers, practitioners, and political activists purporting (and in many cases genuinely intending) to act in the name of vulnerable parents and children instead only advanced the interests of an already-sheltered industry, and left a fraught and sensitive domain of our society even more exposed and unprotected.