Alabama lawmakers on Wednesday passed legislation to shield in vitro fertilization providers from civil and criminal liability, capping off their scramble to allow the fertility treatment after a State Supreme Court ruling found that frozen embryos should be considered children.
But it was unclear whether the protections would be enough for the state’s major fertility clinics to restart treatments. Doctors at one clinic said they were ready to begin again as early as the end of the week, while another clinic said it was not assured about the scope of protections and would wait for “legal clarification.”
As the measure headed to Gov. Kay Ivey, a Republican, for her signature, lawmakers and legal experts acknowledged that it did not address existential questions raised by the court about the definition of personhood, leaving open the prospect of legal challenges in the future.
The overwhelming vote of support — 81 to 12 with nine abstentions in the House and 29 to 1 in the Senate — came barely two weeks after the ruling. It demonstrated the intense urgency among Republicans to protect I.V.F. treatments, even if that meant sidestepping the thorny contradictions between their pledge to protect unborn life and fertility treatment practices.
“It’s happy tears, it’s a sigh of relief just because we know we are protected,” said Stormie Miller, a Hoover, Ala., mother who had twin girls through I.V.F. and has two remaining frozen embryos. Talking about the future of those embryos, she added, “We’re able to make that decision for ourselves and not have someone make that decision for us.”
Reproductive medicine in the state was thrown into turmoil by the court ruling, which applied to a group of families who filed a wrongful-death claim over the accidental destruction of their embryos at a clinic in Mobile in 2020. But the court’s interpretation of Alabama statute that frozen embryos should be considered children — coupled with an impassioned, theology-driven opinion from the chief justice — sowed fear about civil and criminal liability among doctors and clinics, and raised concern about the ramifications of other states taking a similar stance.
At least three major clinics stopped I.V.F. treatments, and an embryo shipping company paused its business in the state. Patients, who said they were already exhausted by the financial, physical and emotional toll of treatment, pleaded with lawmakers to preserve their chance to grow their families.
And from Montgomery to Washington, Republicans suddenly found themselves racing to publicly endorse I.V.F. treatments, with some lawmakers sharing their own fertility stories and others calling for a quick legislative fix. The party has already struggled to respond to voter concerns about stringent anti-abortion laws in a hotly contested presidential year, and President Biden and Democrats pointed to the ruling as yet another sign of Republican overreach into women’s lives.
But Alabama Republicans stopped short of addressing whether a frozen embryo conceived outside of the womb should be considered a person. Instead, they quickly negotiated a measure that broadly shields clinics and I.V.F. providers from civil and criminal liability and limits the liability for shipping companies to damages to cover “the price paid for the impacted in vitro cycle.”
“The problem we’re trying to solve right now is to get those families back on a track to be moving forward as they try to have children,” said State Representative Terri Collins, the lead sponsor of the measure in the House. “Will we need to address that issue? Probably.”
“I don’t want to define life — that’s too important to me, to my faith,” Ms. Collins, who previously led the push in the House to ban abortion in 2019, added. “But we do have to decide where we begin protection, and that’s what I think we’ll have to talk about.”
Infirmary Health Systems and the Center for Reproductive Medicine, the clinic and doctors entangled in the wrongful-death lawsuit, said it would not yet resume I.V.F. treatments.
“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 statement said.
Some lawmakers opposed the bill, expressing reservations over whether patients would be able to pursue negligence lawsuits against doctors and clinics. And some conservatives grappled with whether it went too far in supporting a treatment disavowed by the Catholic Church and other religious organizations.
“I’m for I.V.F. — it’s just the treatment of embryos and how we handle that, and I feel like we need more time to process,” said State Senator Dan Roberts, one of two Republicans who abstained from a committee vote on Tuesday. He asked, “Does that embryo have a soul or not have a soul?”
Ms. Collins and other senior Republicans suggested that a task force could be formed to further discuss the issue. But it was unclear whether that would be enough to clear the murky legal and largely unregulated landscape for I.V.F. treatments.
“The question that’s answered by this bill is, are our fertility clinics liable?” said Clare Ryan, a professor of family law at the University of Alabama. “It doesn’t address these bigger questions about, what is the child? When does the act of conception occur? What is the role of uterine implantation?”
Leaders of conservative, religious and anti-abortion groups, including the Susan B. Anthony Pro-Life America group and the public policy arm of the Southern Baptist Convention, signed on to a letter urging Ms. Ivey to veto the bill to avoid “a rash reaction to a troubling situation.”
Lawmakers, the groups wrote, “must resist an ideology that treats human beings as expendable commodities” and “take into consideration the millions of human lives who face the fate of either being discarded or frozen indefinitely, violating the inherent dignity they possess by virtue of being human.”
The State Supreme Court ruling also drew upon a constitutional amendment approved by Alabama voters in 2018 to “recognize and support the sanctity of unborn life and the rights of unborn children,” reflecting language championed by groups opposed to abortion rights. Because that language is now enmeshed in the 1901 Alabama Constitution, some experts said the bill this week would likely face further legal challenges.
“Republicans created this mess for themselves, and now they’re trying to contain the damage from it without dealing with the mess itself,” said Susan Pace Hamill, a University of Alabama law professor who specializes in the Alabama Constitution. She added, “They are doing back somersaults to avoid disturbing directly anything the Alabama Supreme Court said.”
Democrats had put forward both a constitutional amendment and a measure that explicitly countered the personhood definition established in the ruling. But Republicans, who hold a supermajority, instead focused on their measure, tucking in a clause that would make the immunity retroactive for any case or situation that was not already in litigation when the law passed.
“We’re creating more problems — we have to confront the elephant in the room,” said Representative Chris England, a Tuscaloosa Democrat.
But for the women and some doctors who have been in limbo for an agonizing two weeks, the passage of the bill was a welcome relief, with a couple people in the gallery applauding when the bill passed the House.
Seated in a row of a key Senate committee hearing on Tuesday, three doctors from the provider Alabama Fertility reflected on what the past two weeks had been like since they shuttered I.V.F. treatments at their clinics across the state. They had spent hours deciphering the latest legislative development and having gut-wrenching conversations with their patients.
“She just sobs that, ‘I want my baby,’” Dr. Mamie McLean recalled of one conversation. “I usually have something to say. I didn’t have anything to say, because we feel that.”
But the bill before them, the doctors said, meant that they could restart their work as early as Thursday. And the experience made them realize that perhaps they needed to spend more time talking to lawmakers about their work.
“We now have to think of this as an extension of our duty to our patients,” said Dr. Michael C. Allemand, adding that “this has opened our eyes.”
Jan Hoffman and Sarah Kliff contributed reporting.
