Alabama Lawmakers Scramble to Shield IVF After State High Court Ruling

Both Republicans and Democrats in Alabama are working to carve out exceptions for in vitro fertilization (IVF) after the state’s Supreme Court ruled earlier this month that frozen embryos are considered unborn children under state law.

At least three clinics have reportedly paused offering IVF since the state Supreme Court issued its ruling, which stated that anyone who destroys a frozen embryo may be held liable under the state’s Wrongful Death of a Minor Act — a law that has historically applied to born and unborn children.

Alabama lawmakers are facing a massive pressure campaign from both sides following the ruling and in a highly consequential election year. Democrats, including President Joe Biden, are already using the decision as part of its pro-abortion and reproductive health campaign. Republicans, many of whom claim to believe life begins at conception, are being told to uncritically support IVF so as not to look “extreme” — despite the moral and ethical quandaries surrounding the process, including disposal, experimentation, longterm storage, eugenic-style embryo selection, and even selective abortions later on.

Alabama Republican state Sen. Tim Melson, who is a doctor, is introducing a proposal that seeks to clarify that a fertilized eggs is a “potential life” and not a human life until it is implanted in the uterus, CBS News reported on Monday.

“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available for people who have fertility issues that need to be addressed because they want to have a family,” Melson said.

Democrat House Minority Leader Anthony Daniels also introduced legislation claiming that a “human egg or human embryo that exists in any form outside of the uterus shall not, under any circumstances, be considered an unborn child” under state law, according to the report.

Additionally, Alabama Gov. Kay Ivey (R) said the state wants to encourage a culture of life and that includes “couples hoping and praying to be parents who utilize IVF.” Alabama Attorney General Steve Marshall also said he does not intend to prosecute IVF providers or those who are pursing IVF.

The Alabama Supreme Court case is centered on whether the Center for Reproductive Medicine can be held liable under the Wrongful Death of a Minor Act after a patient accessed, dropped, and destroyed the frozen embryos of several couples in 2020. The embryos were created via IVF, in which “mature eggs are collected from ovaries and fertilized by sperm in a lab, [and] then a procedure is done to place one or more of the fertilized eggs, called embryos, in a uterus, which is where babies develop,” according to the Mayo Clinic.

RELATED: Haley on Alabama Supreme Court IVF Ruling — ‘Embryos, to Me, Are Babies’

The state’s high court ultimately reversed a lower court ruling that did not recognize frozen embryos as unborn children. The Alabama Supreme Court’s based its reasoning on the Sanctity of Unborn Life Amendment adopted to the state Constitution in 2018, which declared it “public policy” to recognize “the sanctity of unborn life and the rights of unborn children.”

“This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act, a statute that allows parents of a deceased child to recover punitive damages for their child’s death,” the opinion reads.

“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed,” the justices continued. “Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

The justices noted the text of the Wrongful Death of a Minor Act is “sweeping and unqualified.”

“It applies to all children, born and unborn, without limitation,” they wrote. “It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

Justice Gregory Cook dissented, warning that the decision “almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.”

Justice Tom Parker disagreed with Cook’s assessment in a concurring opinion, writing that the Alabama Legislature may choose to create laws in the area of IVF, which for decades “has been largely unregulated in the United States, with some commentators even comparing it to the Wild West.”

“For instance, in Australia and New Zealand, prevailing ethical standards dictate that physicians usually make only one embryo at a time,” he wrote. 

He added:

On the related issue of embryo transfers, which is the process of implanting the embryos into the uterus, in Australia and New Zealand over 90% of embryo transfers occur only one at a time. Likewise, European Union (“EU”) countries set a legal limit on the number of embryos transferred in a single cycle. In EU countries, 58% of embryo transfers involve just one embryo, and 38% involve two; thus, 96% of embryo transfers in EU countries involve two or fewer transfers at one time.

Such limitations on embryo creation and transfer necessarily reduce or eliminate the need for storing embryos for extended lengths of time. Italy went one step further, banning cryopreservation of embryos except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation. All of these measures protect the lives of the unborn and still allow couples to become parents.

“Therefore, although certain changes to the IVF industry’s current creation and handling of embryos in Alabama will result from this decision, to the extent that Justice Cook is predicting that IVF will now end in Alabama, that prediction does not seem to be well-founded,” he concluded.

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.

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