Alabama Legislature Missed the Mark Regarding IVF Law

Mar 8, 2024

After the Alabama Supreme Court ruled 7-2 that frozen embryos created through in-vitro fertilization (IVF) are children, the state legislature and Governor Kay Ivey enacted a law this week providing medical professionals and IVF participants with legal immunity for the death or damage of a frozen embryo. Despite the Court stating that an IVF embryo is a “minor child” and is no different under the law than an embryo in the womb, the new law will treat frozen IVF children differently and not allow legal consequences for their deaths. 

Liberty Counsel Founder and Chairman Mat Staver said, “The Republican-led legislature missed the mark with this knee-jerk reaction. It is too bad legislators are moved more by political winds than in science and in the fundamental issues involving human life.” 

In February 2024, the Alabama High Court determined that the state’s constitution, under its 2018 Sanctity of Unborn Life Amendment, protected “‘the rights of the unborn child’ equally with the rights of born children.” The Court stated that all unborn children, no matter their stage or location, were entitled to the same legal protections under the law and ruled that a wrongful death lawsuit involving the destruction of frozen embryos could move forward. The court ruling then prompted the three largest IVF providers in the state to pause IVF procedures under potential risks of prosecution.

In response, Alabama lawmakers fast-tracked and overwhelmingly passed SB 159 through both legislative chambers. The law provides both civil and criminal immunity “to any individual or entity” involved in providing or receiving services related to IVF when death or damage to an embryo occurs. The law took effect immediately after Governor Ivey signed it. The law even applies retroactively protecting providers involved in IVF services prior to the bill’s adoption who are not already involved in litigation. However, the law does not address the state Supreme Court’s ruling that frozen embryos are children, but rather only aims to protect the IVF process and its participants. At least two major clinics, Alabama Fertility Clinic and the University of Alabama at Birmingham (UAB) clinic, announced they will resume IVF services after shutting down for several weeks. 

The law states in part that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.”

Moreover, the law applies “retroactively to any act, omission, or course of services which are not the subject of litigation on the effective date of this act.” 

The one legal recourse the new law allows for in the death of an embryo is a civil lawsuit against manufacturers of IVF-related goods used in the IVF process or in the transport of stored embryos. The bill states in those instances compensatory damages are limited only to the cost a couple paid for that IVF cycle. 

This law fails to recognize the reality that human life begins at fertilization. The location of the human embryo does not determine whether it is a human life entitled to protection. Rather than this ill-conceived law that contradicts both science and other Alabama law, the legislature should have crafted a law that proscribes specific guidelines for IVF that respect human life. Most IVF clinics fertilize far more embryos than are necessary, thus discarding or cryogenically freezing the leftover embryos. This method completely disregards the sanctity of human life. 

If human life begins at fertilization in the womb, and it does, then it also begins at fertilization outside the womb. The unique beginning of human life does not depend on its location.

Staver said, “Every human life begins as an embryo and has incalculable worth. Yet this law presents a double standard treating IVF embryos differently by removing their legal protections. The Alabama Supreme Court held that every unborn life, no matter their stage or location, is a child. As such, children who are in the frozen IVF embryo phase deserve the exact same dignity and protection as all children. The Alabama legislature should revisit this issue immediately and take a more reasoned and scientific approach that proscribes how human life must be treated in the context of IVF.” 

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