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Home NewsCNN Alabama is reeling from a state court’s decision that frozen embryos are human beings. Here’s what could happen next

Alabama is reeling from a state court’s decision that frozen embryos are human beings. Here’s what could happen next

by Chanel Rowe
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Originally Published: 28 FEB 24 08:08 ET

Updated: 28 FEB 24 11:00 ET

By Lauren Mascarenhas, CNN

(CNN) — The Alabama Supreme Court this month ruled that frozen embryos are human beings and those who destroy them can be held liable for wrongful death, sending the state’s fertility industry into chaos.

In vitro fertilization advocates are expected to rally outside the state capitol in Montgomery on Wednesday. Meanwhile, lawmakers are scrambling to push through legislation that would shield IVF providers from legal punishment, including at least one Republican-backed bill scheduled to be heard in the state’s House Health Committee on Wednesday afternoon.

At least three providers in Alabama, including the state’s largest health system, have halted some in vitro fertilization services since the court’s ruling.

Some families have chosen to travel to other states for fertility services and many more are grappling with unanswered questions about how to go ahead with planned IVF treatment – and what to do with existing embryos.

Alabama’s Republican Attorney General Steve Marshall has indicated his office does not intend to use the state court’s decision as a basis to prosecute families or IVF providers, but at least one lawmaker has expressed concern that other law enforcement officials could.

Without clear guidance from any state or medical authority, the state Supreme Court’s ruling has created a climate of fear and uncertainty among Alabama providers, Katie O’Connor, the director of federal abortion policy at the nonprofit National Women’s Law Center, told CNN.

“What the Supreme Court of Alabama didn’t answer, but is certainly still out there and certainly on the minds of people who want to provide IVF, is whether criminal laws could be applied,” O’Connor said. “That is certainly a possibility and one that I think a lot of providers are unwilling to take the risk for.”

Legislators work to protect IVF access

Alabama Republicans have introduced several bills aimed at protecting IVF providers from criminal or civil liability in the state House and Senate, where they hold a majority.

Sponsored by Republican Terri Collins, House Bill 237, is slated to be heard in the House Health Committee on Wednesday afternoon, while a twin bill introduced by Republican Tim Melson, Senate Bill 159, is pending the Senate Healthcare Committee.

Those bills would “provide civil and criminal immunity to persons providing goods and services related to in vitro fertilization except acts of omission that are intentional and not arising from or related to IVF services.” If passed, both bills would apply retroactively.

Senate Bill 160, filed Tuesday by Republican state Sen. Larry Stutts, also seeks to protect IVF providers from liability, but would not apply retroactively.

While the Republican-backed bills seek to protect providers, they do not address the issue of whether a frozen embryo is considered a human being, Democratic House Minority Leader Anthony Daniels told CNN on Wednesday.

Last week, Daniels introduced Alabama House Bill 225, which would declare “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purposes under state law.”

The legislation would become effective immediately if approved by both chambers and signed into law. There could be a vote on that bill on Tuesday, Daniels told CNN.

Daniels also introduced House Bill 240 on Tuesday, which would amend a part of the state constitution that supports that rights of unborn children to note that an extrauterine embryo is not an unborn child.

“Any legislation that gets passed is ultimately up to interpretation by the Alabama Supreme Court,” O’Conner said. “I’m glad to see that legislators are thinking about it, but I think that the Supreme Court has made it really challenging to get around this ruling.”

On the national level, Democratic Sen. Tammy Duckworth announced in a news conference Tuesday that she will bring the Access to Family Building Act to the Senate floor Wednesday, aimed at protecting IVF access and shielding providers from punishment for providing IVF services.

Daniels said the Alabama legislature has been trying to chip away at reproductive freedom for years, citing the state’s abortion ban.

The University of Alabama at Birmingham health system – the state’s largest – is required to follow the court’s ruling, “unless and until it reconsiders its opinion, or the Alabama Legislature addresses it through legislation,” system spokesperson Savannah Koplon told CNN on Tuesday.

Alabama Fertility Specialists, another provider that paused some IVF services after the ruling, posted a video on Facebook on Sunday, saying its team was aware of proposed legislation to “save IVF in Alabama” and urged people to show up “in massive numbers” to a Wednesday event planned with advocacy groups to highlight support for IVF services.

“At this point, we’re in a position where the only thing we can do is advise us all to hold and ask our leaders in this state to create the protections that we need to pick back up our treatment,” Dr. Janet McLaren Bouknight, a doctor with Alabama Fertility Specialists, told CNN on Tuesday.

Until new legislation or policy is implemented in Alabama, many providers have their hands tied, Katherine Kraschel, an assistant professor at Northeastern University School of Law, told CNN. “The only thing we can say with certainty is that now (providers) have exorbitantly more civil liability than they did before this case,” Kraschel said. “The rest is a big unknown abyss of liability.”

Ruling has national impact

The US Supreme Court is unlikely to review the Alabama ruling, because it doesn’t include an interpretation of the US Constitution or federal law, experts say.

But as some families travel from Alabama to other states, including Texas, to access IVF services, lawmakers across the country are fielding questions about whether they will work to protect IVF access in their own states.

Texas Gov. Greg Abbott on Sunday voiced support for IVF – though he stopped short of calling for a law to protect access in Texas.

“(Former) President Trump put out a statement on this that I think a lot of people agree with, and that is a goal that we all kind of want to achieve. And that is we want to make it easier for people to be able to have babies, not … make it harder,” Abbott told CNN’s Dana Bash on “State of the Union” Sunday.

When asked whether he planned to urge the Texas legislature to create laws to keep IVF legal, Abbott said he thought Texas would eventually address the issue, noting that he wants to keep Texas a “pro-life state.”

Lawmakers in Florida and other states are considering legislation around personhood that experts say could have a similar impact on IVF services to that seen after Alabama’s Supreme Court ruling. “Once you open the Pandora’s box to personhood, there really is a question about whether criminal laws would apply to doctors who perform IVF services,” O’Connor said.

proposed bill in Florida that would define a fetus as an “unborn child” and expand liability for wrongful death lawsuits for unborn children was supposed to see a vote on Monday, but has now stalled amid the fallout from the Alabama court ruling.

Republican Florida state Sen. Erin Grall requested the vote be postponed, the Tampa Bay Times reported.

Experts meanwhile are closely watching states that already have restrictive reproductive care policies in place. “I think you can expect the same states that have created sort of abortion deserts are likely the ones that will make IVF more difficult, if not impossible to access,” O’Conner said.

Legislation around the issue of personhood could have far-reaching impacts, Kraschel said, citing questions including what happens to a couple’s embryos when they divorce. “All these personhood issues have broad sweeping implications, as states start to treat fetuses and embryos more like people,” she said.

The case at the center of it all

The Alabama 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 alleged several frozen embryos were dropped on the floor and destroyed in 2020 at an Alabama fertility clinic and sued, claiming wrongful death.

A trial court initially dismissed the claims, but the state Supreme Court ruling reversed that decision. The clinic involved in the lawsuit, The Center for Reproductive Medicine in Mobile, is among those that have halted some IVF services.

Trip Smalley, an attorney representing one of the couples in the case, previously told CNN that the parents were “devastated” by the destruction of their embryo and simply sought a way to be able to hold the fertility clinic accountable. Any policy issues that may arise from the ruling should be taken up by lawmakers, he added.

Smalley said that the case would be sent back to a lower state court and that the parties would be preparing for that trial.

The-CNN-Wire
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Embryologist

**This image is for use with this specific article only** An embryologist uses a microscope to view an embryo in this photo from 2013.

Richard Drew/AP via CNN Newsource

28 Feb 24

UAB medical campus

**This image is for use with this specific article only** The sun shines through an awning at The University of Alabama at Birmingham Women’s and Infant Center in Birmingham, Alabama, in March 2022.

Butch Dill/AP via CNN Newsource

28 Feb 24

Alabama Supreme Court building

**This image is for use with this specific article only** The Alabama Supreme Court building in Montgomery is pictured earlier this month.

Kim Chandler/AP via CNN Newsource

28 Feb 24

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