The Alabama Supreme Court’s embryo ruling has national effects

At least two Alabama fertility clinics this week announced plans to resume in vitro fertilization procedures after a new law took effect shielding IVF providers from liability in the destruction of human embryos.

Alabama Gov. Kay Ivey signed the bill into law late Wednesday, calling it a “short-term measure” intended to allow Alabama couples to continue growing their families through IVF. Some fertility clinics in the state had halted IVF procedures after the Alabama Supreme Court ruled last month that parents can sue providers over the destruction of embryos under the state’s Wrongful Death of a Minor Act. Ivey—a Republican endorsed by National Right to Life—said she was confident it would give IVF clinics the assurances they need to resume services right away.

“Alabama works to foster a culture of life, and that certainly includes IVF,” Ivey wrote in a statement announcing the new law. She gave the measure her signature even after pro-life groups on Monday opposed the legislation in an open letter, calling it a “rash reaction to a troubling situation” and an “unjust measure.”

The new law attempts to return the IVF industry in Alabama to status quo, allowing the clinics’ practices to remain largely unregulated in the state. But the legislation doesn’t end an ongoing national conversation on the topic of IVF that has already extended from state capitols to campaign trails.

“Make no mistake about it,” Ivey wrote in her statement. “Particularly as we are in the heat of a national election, we will hear a lot of political rhetoric around IVF.”

Some of that rhetoric appeared Thursday night during President Joe Biden’s State of the Union address. Among First Lady Jill Biden’s special guests at the speech was a Birmingham woman whose fertility clinic canceled her embryo transfer because of the Alabama decision. President Biden claimed the overturn of Roe v. Wade “unleashed” the ruling.

“What her family has gone through should never have happened. Unless Congress acts, it could happen again,” he said. “So tonight, let’s stand up for families like hers. To my friends across the aisle, don’t keep this waiting any longer. Guarantee the right to IVF! Guarantee it nationwide!”

Elizabeth Carr, the first IVF baby born in the United States, also attended the speech as the guest of Sen. Tim Kaine, D-Va. The lawmaker is pushing to pass legislation protecting IVF and other assisted reproduction technology as his party doubles down on its support of the fertility procedure. Last week, the Democratic National Committee announced the launch of a billboard campaign in eight states including Florida and Georgia linking the recent Alabama ruling with former President Donald Trump.

On Wednesday, a Democratic congressional candidate in Michigan released a television ad leveraging her personal support of IVF as a weapon against her opponent, Republican Rep. Bill Huizenga. In the 30-second spot, candidate Jessica Swartz tells her own story of infertility. “IVF was an answer to our prayers,” she says as a video plays of her child’s first birthday party. “But our congressman, Bill Huizenga, wants to roll back our freedoms.”

Swartz points to Huizenga’s 2023 support of the Life at Conception Act, federal legislation that would have declared all human beings have the right to life starting at the moment of fertilization. It never received a committee hearing.

Meanwhile, the ripples that started in Alabama have spread into other state capitols. After the ruling, lawmakers in states including Georgia, New York, and Kentucky introduced bills that would protect the IVF industry from scrutiny. Very similar bills in Georgia and New York explicitly state that the law does not consider a human embryo outside of a uterus to be a child or person “or any other term that connotes a human being.” The Kentucky bill protects IVF facilities from damages related to the loss of human embryos except in cases of negligence or willful misconduct. None of those three bills have yet received committee hearings.

In Tennessee on Tuesday, an IVF-related bill died in a House committee. Introduced before the Alabama ruling, the legislation would have clarified that the use of contraception and disposing of embryos created through fertility treatments does not count as a criminal abortion offense. The bill’s sponsor, a Democrat, presented the bill in committee as a way to avoid a ruling similar to Alabama’s. Republicans voted it down, pointing to a 2022 opinion from Tennessee’s attorney general declaring that the state’s abortion laws only apply to a living unborn child inside of a woman’s body.

Back in Alabama, that state’s new law wasn’t enough to allay the concerns of the IVF clinic at the center of the Alabama ruling. The Center for Reproductive Medicine in Mobile is now facing three wrongful death lawsuits from distraught parents over the accidental destruction of their embryos in 2020. “At this time, we believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own,” the center and the Mobile Infirmary, where the center stores frozen embryos, said in a statement to The New York Times.

But the new measure is also not enough for pro-life groups. The organization Live Action called the Alabama bill Gov. Ivey signed “horrific.” In a statement, Live Action President Lila Rose equated the law to giving the IVF industry a “license to kill.”

“Politicians cannot call themselves pro-life, affirm the truth that human life begins at the moment of fertilization, and then enact laws that allow the callous killing of these preborn children simply because they were created through IVF,” Rose said. “American law must reconsider its approach to IVF. Infertility can be an incredibly painful burden and is increasingly common. But the solution cannot be to deny legal protections to human embryos or to allow them to be frozen or killed at will in America’s IVF industry, which is the approach the Alabama government has chosen.”