In vitro fertilization is set to resume in Alabama, following the passage of a state law shielding health care practitioners and patients from civil or criminal liability following the state Supreme Court’s February 16 ruling that grants embryos the same right as people.
With the new law in effect, Alabama physicians said they were prepared to resume treatment almost immediately, with patients scheduled for embryo transfers this week and next. But in the longer term, physicians acknowledged, the state court’s decision may have opened a sort of Pandora’s box, triggering a potential new round of efforts to restrict IVF’s legality in Alabama.
The Alabama Supreme Court’s ruling had previously made IVF functionally impossible to provide. That’s a result of the mechanisms used in IVF, in which physicians retrieve eggs and sperm to cultivate embryos in a lab setting. Those that are likely to result in a healthy pregnancy can be transferred to the uterus. Because not every embryo will be viable, and because retrieving eggs can be an expensive and complex process, physicians will generate more embryos than the patient intends to use. Excess embryos can be frozen for later use, donated or discarded. Under the court ruling, the loss of any lab-made embryos — including fertilized eggs that simply fail to grow — could have been treated as a crime.
“Following the hopeful passage of a bill, our attention will then turn to what this means for the future of IVF in our state,” Dr. Mamie McLean, an Alabama fertility doctor, said hours before the vote.
Dr. Beth Malizia, another fertility doctor in Alabama, said, “I don’t think there’s anybody in Alabama not concerned about women’s health care in general and certainly access to fertility treatment after this blew the door open.”
The court ruling prompted national lawmakers across the political spectrum to voice their support for keeping the practice legally available. In the lead-up to the Wednesday night vote, Alabama legislators said they heard from thousands of people, including IVF patients, calling for restored legal access.
Alabama lawmakers have indicated an interest in continuing to legislate around IVF, with some Republicans suggesting that the state should consider new limitations on disposal of frozen embryos once families using IVF decide they are done having children. Those kinds of restrictions wouldn’t necessarily make IVF impossible to provide, but they could make it more cumbersome and more expensive to offer.
Both Malizia and McLean expressed concern about what that continued legislative interest could mean.
“If there are further conversations that happen after this, we have pushed as hard as we can to be part of those,” Malizia said. “I want people to have the flexibility to come up with their own thoughts and ideas about this process. But I do want them to have medical information. I want them to have accurate information about what this process is.”
McLean said she’s also heard questions about whether there should be a limit on how many eggs patients should be allowed to have fertilized. Imposing a strict number limit wouldn’t make sense medically, she said, since each patient has different needs based on their particular family’s fertility circumstances.
“We are specifically trained and have the experience to make decisions for each patient based on their own moral and ethical beliefs, as well as their clinical history and desired family size,” McLean said. “We reject the idea that there should be a one-size-fits-all legislation solution for IVF care.”
Meanwhile, some legislators suggested as recently as Wednesday night that, as long as state law did not address the heart of the Alabama court’s decision, the new law could not guarantee IVF providers could legally continue to provide care.
The court’s February decision resulted from its interpretation of a 2018 anti-abortion state constitutional amendment, which said the state must protect the rights of “unborn children.”
“We aren’t providing a solution here. We’re creating more problems,” said state Rep. Chris England, a Democrat, during the state House of Representatives’ final debate over the new law. “We have to confront the elephant in the room.”
The Association of Reproductive Medicine, a national organization, has been critical of the new Alabama protection for that reason, noting that under current Alabama law, embryos are still considered people.
“Without a more permanent and thorough fix, it will be difficult to recruit new physicians to the state and build their practices so they can continue to provide the best possible care to Alabamians,” Sean Tipton, the organization’s chief advocacy and policy officer, had previously said.
Democratic lawmakers suggested that the Alabama Supreme Court could weigh in soon, potentially overturning the new law. Already, a separate wrongful death lawsuit has been filed in Alabama court concerning a different clinic’s alleged loss of embryos — and that case, England argued, could become a new vehicle for the state law to be overturned, and for clinics to be forced once again to halt care.
That is a looming concern for doctors, too.
“While the bill should allow us to return to immediate IVF care, ultimately the ruling is still here,” McLean said.
Credit: The 19th
Credit: The 19th
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