Alabama legislators are submitting bills to preserve the state’s endangered in vitro fertilization industry after the state supreme court declared frozen embryos to have personhood rights.
Earlier this month, the Alabama Supreme Court issued a ruling that critics say blurs the lines between the church and state and makes use and disposal of microscopic excess “children” problematic during IVF procedures. Since that ruling, at least three Alabama fertility clinics have discontinued some IVF treatments to protect staff from legal risk. The Center for Reproductive Medicine at Mobile Infirmary paused IVF treatments to prepare embryos for transfer on February 24.
“If people had listened to activists in Mississippi a decade ago, we wouldn't be here right now.”
“The recent Alabama Supreme Court decision has sadly left us with no choice but to pause IVF treatments for patients,” said Mark Nix, president and CEO of Infirmary Health. “We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving.”
Alabama Fertility’s Birmingham clinic and the University of Alabama at Birmingham both said they were pausing embryo transfer as the court system and legislators work out whether doctors and parents (specifically, women) could be charged for a crime or legally bankrupted by prosecution. Alabama House Democrats introduced their bill last week to “provide that 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 purpose under state law.”
But critics say the bill still leaves family and medical decisions in the hands of Alabama legislators who will continue to insert their religion into law.
“It’s woefully short,” said Laurie Bertram Roberts, executive director and CEO at Mississippi Reproductive Freedom Fund, which funds out-of-state abortion efforts for women. “If people had listened to activists in Mississippi a decade ago, we wouldn't be here right now.”
Voters in Mississippi, which is allegedly an “anti-abortion state” wholly rejected a 2011 amendment granting unborn embryos personhood. Arguments against the amendment included its risk to IVF procedures.
The case now shaking Alabama clinics and women across the nation stems from a wrongful death lawsuit brought by three couples who discovered an Alabama fertility clinic had lost their embryos in 2020. According to court filings, a patient had wandered into an embryo storage area and accidentally damaged the property. As of yet, there is no proof that plaintiffs James LePage and Emily LePage sued the Center for Reproductive Medicine and the Mobile Infirmary Association under the state's Wrongful Death of a Minor Act to specifically press for personhood for embryos (or anything in addition to a maximum court payout). In fact, plaintiff lawyers described their clients as "plaintiffs who are supporters of in vitro fertilization” and that “they have two beautiful children in each family because of in vitro fertilization.”
“The notion that they would do anything to hinder or impair the right or access to IVF therapy is flat wrong. That's not why we're here,” plaintiff attorneys argued.
Idealogues on Alabama’s supreme court hijacked the case and used it to cancel a lower court decision that embryos did not qualify as a person or child. The supreme court opinion, choked by conservative interpretations of Old Testament anecdotes, rules the people of Alabama had voluntarily adopted a “theologically based view of the sanctity of life.” Those laws, enacted by mostly white, male legislators, now claim “each person … has a value that far exceeds the ability of human beings to calculate; and human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”
The court included references to Genesis, Exodus, the Ten Commandments, and other citations to support their argument, all made possible thanks to the 2013 ruling by the U.S. Supreme Court’s controversial Dobbs v. Jackson Women’s Health Organization decision.
“Limiting our role to interpreting the existing words in a statute and letting the Legislature decide changes is one of the basic teachings of the United States Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization,” the court pointed out.
Justice William Burwell Sellers, in partial dissent, argued “to equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.”
Justice Greg Cook, in full dissent, argued the court’s opinion wrongfully expands the meaning of the Wrongful Death Act beyond what legislators intended when they created it in 1872. He added judges were acting in defiance of the state’s legislature.
“I dissent because the main opinion violates this fundamental principle—that is, that the legislative branch and not the judicial branch updates laws—by expanding the meaning of the Wrongful Death Act beyond what it meant in 1872 without an amendment by the Legislature,” Cook stated.
Roberts wagered Mississippi residents still want no part of personhood and that it is only their elected representatives who advocate for the end of abortion and women’s bodily autonomy. She said abortion would likely already be legal in the “right to life” state, if legislators revived the state’s ballot initiative that its supreme court killed in 2021.
“We know the people of Mississippi don't want any of this. That's why (legislators) are gatekeeping the ballot initiative,” Roberts told BGX.
Alabama Republicans may file similar legislation protecting IVF before the end of the Alabama legislative session.