IVF clinics, patients, lawmakers misunderstand Alabama ruling

Sarah Peyton Weiss whooped for joy when she saw a headline in her family’s group text announcing a Feb. 16 ruling from the Alabama Supreme Court. It affirmed the right of three couples to sue their fertility clinic under the state’s Wrongful Death of a Minor Act over the loss of their frozen embryos. The embryos died in 2020 when an unauthorized person gained access to the cryogenic nursery in Mobile, Ala., where they were stored and dropped them on the floor.

As Sarah Peyton read the article, she thought of her and her husband’s own frozen embryos and their process of writing a will to ensure their embryos’ protection as children. “Honestly, I was thankful and I was glad that they got that ruling,” she said. “I would want our children protected, as well.”

But the couple’s response to the ruling hasn’t been all celebration. The Weisses live in Montgomery, Ala., with a 16-month-old son who was conceived through in vitro fertilization. Their four embryos are in cryogenic storage in a clinic across the state in Mobile. It’s the same facility the three couples in the case sued—and one of the several clinics in the state that shut down IVF services following the ruling.

John Ward Weiss Jr., Sarah Peyton’s husband, said the ruling seems to have made some doctors fear they will face criminal homicide charges for the intentional or unintentional death of an embryo. The fallout has left the Weisses wondering if they’ll have to try to transport their embryos to another state for implantation when they’re ready for another baby. They hope the legislature will provide clarity soon so the facility can resume its services.

The Weisses are not alone in their concern that the ruling opens the door to criminal prosecutions. Some IVF families in Alabama have even worried about facing such prosecutions themselves—concerns that state lawmakers parroted last week in discussions of IVF legislation. And although the bills offer criminal and civil immunity in the IVF process, the ruling itself clearly states it only applies to the civil Wrongful Death of a Minor Act. Some Alabama lawyers who celebrated the ruling worry the reaction could pressure lawmakers into allowing the fertility industry to continue unchecked. They hope that, instead, it will force parents, doctors, and lawmakers to reconsider how the industry treats human embryos.

The University of Alabama at Birmingham announced the suspension of its IVF services the week after the ruling. It told news outlets it had to “evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages” for continuing to provide IVF.

Those concerns have since extended to IVF patients across the state.

Writing in a USA Today editorial last month, one mother of a frozen embryo in Alabama questioned what the ruling would mean for her fertility doctor and herself. “By conferring personhood status on our last frozen embryo, these seven judges have made us wonder if we can be charged with murder if we try to implant it but the pregnancy does not succeed,” wrote Brittany Stuart.

Another mother CNN quoted in a Feb. 25 article said she is pro-life and believes life begins at conception. “But I also don’t think that if we were to do IVF and it failed the first time—because sometimes it just doesn’t take—then that would make me a murderer or that would make the doctor part of a homicide,” she said. “I don’t get that, and I don’t see how they even get that.”

Alabama Attorney General Steve Marshall had already clarified that he does not intend to use the ruling as a basis to prosecute IVF doctors or families who use their services.

Pro-life attorney Sam McLure, who has worked on embryo adoption cases, said the decision itself is clear that it does not affect the state’s criminal homicide laws. “That’s not asserted anywhere, even in the dissenting opinion,” said McLure. “This opinion is really very narrow. It’s about needing facilities that house embryonic humans to be able to protect them.”

He pointed to the majority opinion’s discussion of how conduct leading to a criminal prosecution is “almost always narrower than the conduct that can support a civil suit.” In a footnote, the justices say that principle illustrates why it’s incorrect to assume that “the prospect of civil liability for the mishandling of embryos necessarily raises the spectre of criminal liability for the same conduct.”

Even in his dissent, Justice Greg Cook anticipated medical providers would hesitate to create and maintain frozen embryos for fear that they would have to store the embryos forever or else “risk the penalty of a Wrongful Death Act claim for punitive damages.” He did not mention concerns about criminal prosecutions.

“If you’ve got some skin in the game, don’t read the latest news article on this. Read just four pages of this opinion,” McLure said. He said he’s sure families with embryos in cryogenic storage would want facilities to meet some sort of standard to keep their embryos secured and monitored at all times.

“It would take an act of the legislature to say that it’s going to be now homicide if a doctor intentionally throws a tray of embryonic humans against the wall,” said McLure. “Right now, that’s not a crime.”

But discussion of parents facing criminal liability for disposing of their embryos still came up in the legislature last week.

“Some of these mothers came to me saying yesterday that they felt like they could be criminalized if they made the choice to say to the doctor, ‘I want these to be disposed of,’” Democratic Sen. Bobby Singleton said on the Senate floor Thursday.

The nearly identical bills that passed the House and Senate last week provide civil and criminal immunity for death or damage to an embryo during the IVF process. Republican Sen. Tim Melson clarified on the Senate floor that the immunity would apply to parents.

Gov. Kay Ivey has said she expects to see an IVF bill on her desk soon. But national pro-life groups sent a letter to Ivey on Monday, urging her to reject the legislation. They said it would “slam the door on any protections” for frozen embryos and would prevent families from “seeking justice for the death or harm” to their children in the embryonic stage of life.

Laura Clark, interim president of the Alabama Center for Law and Liberty and wife to the senior staff attorney for Alabama Supreme Court Chief Justice Tom Parker, pointed out that some IVF clinics have remained open following the ruling. This shows that the court’s decision didn’t necessitate the shuttering of IVF services. Clark said the fact that lawmakers are offering legislation clarifying that patients and providers can’t face criminal prosecution is not a necessary response to the ruling but simply a way to get clinics to resume services.

“Which I think creates a false dilemma that never existed anyway,” Clark said. She compared it to these clinics holding patients hostage until the lawmakers give the centers freedom to continue practicing IVF unregulated.

However, the ruling still opens up the possibility of civil charges, which stem from Alabamans bringing lawsuits under the Wrongful Death of a Minor Act in the case of an embryo’s death due to negligence or a wrongful act.

“And that’s going to cause everybody to treat these human children with the value that they deserve,” McLure said. He hopes it will make providers more thoughtful about the number of embryos they create and make parents think twice before they stop paying rental fees to keep their embryos in cryopreservation—which is a common issue fertility clinics face.

IVF parent John Ward Weiss Jr. is skeptical that lawmakers—as they work on legislation to restart IVF in the state—will be able to navigate the question of when life begins. “My first thought was … OK, this is a good thing,” John Ward said of the ruling. “But, my goodness, this is going to be a nightmare. And who knows what the fallout is going to be. … I don’t see how some of that is going to end up favorable for [pro-lifers] and for believers.”