By Lauren Mascarenhas and Isabel Rosales, CNN
Montgomery, Alabama (CNN) — Alabama Gov. Kay Ivey signed a bill into law aimed at protecting in vitro fertilization patients and providers from legal liability late Wednesday, with some clinics poised to lift a hold on certain IVF services as early as this week after an unprecedented state Supreme Court ruling threw the future of infertility care into turmoil.
The new law does not address the issue of personhood at the heart of last month’s unprecedented ruling in a case stemming from the accidental destruction of frozen embryos at a fertility clinic, and experts say it’s going to take more work to protect fertility services in the state. The fertility clinic at the center of that case has halted services and told CNN the new legislation falls short of providing the legal protection it needs to resume care.
The state court ruled frozen embryos are human beings and those who destroy them can be held liable for wrongful death, spurring a national reckoning with reproductive health freedom and IVF access.
Three of the state’s limited pool of IVF providers immediately paused some services, sending some families out of state to access treatment and raising concerns that costs for fertility services would skyrocket.
The Republican-backed legislation, which passed both the Alabama House and Senate late Wednesday before Ivey signed it into law, aims to provide civil and criminal immunity to providers and patients for the destruction or damage to embryos. The legislation will apply retroactively.
“The law does not nullify the Supreme Court’s analysis that says the law ought to treat embryos just like people,” Katherine Kraschel, an assistant professor at Northeastern University School of Law, told CNN on Tuesday.
She noted there “is a lot of ambiguity in the language” in the legislation “that if I was advising a clinic, would give me great pause before resuming treatment.”
The wording of the legislation does not clearly define what falls under in vitro fertilization services, leaving a question around the storage and transportation of embryos, she noted.
Experts have also expressed concern that while the legislation protects providers from liability when it comes to the destruction of embryos, it could also insulate them from standard medical malpractice claims.
State Sen. Larry Stutts, a Republican and the lone lawmaker who voted against the measure in the state senate, criticized the language in the bill, arguing it is “not an IVF protection bill, it’s an IVF provider and supplier protection bill” that is “limiting the ability of the mothers that are involved in IVF to have recourse.”
Rep. Terri Collins and Sen. Tim Melson, who introduced the legislation, have noted that it was intended to provide immediate relief for families who have lost access to IVF services, while officials consider more permanent solutions.
“This addresses the imminent problem and that is what I am trying to do today. Do we need to have the longer decision? Yes, we do,” Collins said Thursday.
“This is the temporary fix,” Melson said Thursday during discussion about the legislation on the floor. “This gets the ladies now currently in the situation, that are in limbo, back in the clinic.”
Gov. Ivey similarly acknowledged the new law was a quick fix after the court ruling and noted “there will be more work to come” on IVF protections.
“I am pleased to sign this important, short-term measure into law so that couples in Alabama hoping and praying to be parents can grow their families through IVF,” Ivey said in a statement late Wednesday. “IVF is a complex issue, no doubt, and I anticipate there will be more work to come, but right now, I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately.”
IVF patients express cautious relief
Elizabeth Goldman felt like she’d been living in limbo as her IVF treatments were halted. The uterus transplant recipient, who sold her home and moved to Birmingham to start a family, said she was “thankful” to lawmakers for coming together quickly and helping clinics reopen.
“This has been an extremely stressful and scary 2 1/2 weeks waiting in limbo while my IVF clinic has been shutdown,” Goldman told CNN, saying she’d watched every step of the legislation’s passing and now feels hopeful her “journey can continue after my clinic reopens.”
Gabrielle Goidel similarly expressed a sincere amount of relief after the new law was signed.
“Spencer and I just started crying,” she said of her husband. Goidel invested more than $20,000 into IVF after three miscarriages before the court ruling halted treatment.
“Although it doesn’t take away from all the hurt and craziness we felt, it feels like we are finally seeing change and feel supported,” she said. “I feel immense relief and hope.”
Gabbie Price, who uprooted her life and career to afford IVF, told CNN she was comforted knowing some clinics would start treatment again but more work was needed to ensure this wouldn’t happen again.
“I am thrilled that we are able to get something in place so that clinics can safely operate and patients can continue getting the care they need as well as having access to transfer their embryos out of state,” Price said. “I do agree there is a much larger conversation that needs to be had so that we are not in a situation like this again.”
Time was of the essence, though, she said, and this new law gives her “comfort in staying with my clinic in Alabama.”
“There are still a lot of unanswered questions and it will take some navigating but I am hopeful again.”
When will services start up again?
One of the clinics that halted IVF treatment after the state court’s decision, Alabama Fertility, in Birmingham, is planning to resume those services this week.
The clinic canceled at least 35 frozen embryo transfers in the 12 days after pausing treatments. With patients already slated to continue treatment, the group plans to restart IVF treatments as early as Thursday or Friday, according to Dr. Mamie McLean, a doctor with the clinic.
“We are so hopeful that this bill will provide immediate, complete, and permanent access to IVF treatments in Alabama,” she said. “We cannot wait to celebrate with our patients. Honestly, we can’t wait to do the first embryo transfer, we can’t wait to see the first positive pregnancy test … it holds even more meaning than it did before.”
McLean joined families and other IVF advocates at the Alabama State House last week to call for an immediate restoration of services, as lawmakers inside rushed to push through legislation that would protect them.
“We appreciate the efforts from the legislators to push through a bill that meets the needs of all of the stakeholders involved in IVF treatments in Alabama,” said McLean. “We are grateful that they have heard our voices. We are proud of our patients who have bravely shared their stories and are so impressed with the advocacy efforts on behalf of infertility patients.”
The state’s largest health care system, the University of Alabama at Birmingham, which also paused fertility services after the state court’s decision, said it would also resume IVF treatments but added it would “continue to assess developments,” according to university spokesperson Hannah Echols.
The defendants in the state Supreme Court case, The Center for Reproductive Medicine at Mobile Infirmary, will not yet be resuming IVF services, according to a statement from the infirmary.
“As we understand the language of the proposed law, as it stands, we are not reopening our IVF facility until we have legal clarification on the extent of immunity provided by the new Alabama law,” the statement said. “At this time, 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.”
The American Society for Reproductive Medicine released a statement Thursday warning that without legislation to address the issue of whether a fertilized egg is legally considered a person, IVF providers are still vulnerable.
“We believe these bills will not provide the assurances Alabama’s fertility physicians need to be confident they can continue to provide the best standard of care to their patients without putting themselves, their colleagues, and their patients at legal risk,” the statement read.
The case at the heart of the ruling
The Alabama Supreme Court ruling stems from two lawsuits filed by three sets of parents who underwent IVF procedures to have babies and then opted to have the remaining embryos frozen.
The parents allege that several frozen embryos were dropped on the floor and destroyed in 2020 at an Alabama fertility clinic and sued the clinic. A trial court initially dismissed the claims, but the state Supreme Court ruling reversed that decision.
A fourth lawsuit has since been filed against the defendants in the case.
Though the new legislation applies retroactively, it likely won’t impact the case, as the Alabama Constitution holds that new legislation cannot be applied to active cases.
Groups representing defendants in the lawsuits that culminated in the Supreme Court ruling that frozen embryos are children have filed an application asking the court to rehear the case, according to online records from the Alabama appellate courts.
The group is asking the court to reconsider their ruling, though the justices could take more than six weeks before deciding whether to grant the application to rehear the case, an Alabama court source told CNN.
Some legal experts are skeptical that the court will agree to rehear the case.
Even with some clinics planning to resume services, the court’s decision may still have an impact on Alabama families going forward, Kraschel said.
“Courts, especially in Alabama, could cite the Alabama Supreme Court decision to treat embryos as people in other areas of the law as well,” she said.
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