Kudos to the Alabama Legislature for moving swiftly in reaction to the Alabama Supreme Court’s disastrous decision last month. In case you were comfortably living under a rock, here’s a recap. On February 16, 2024, the Alabama Supreme Court issued a declaration that embryos are “unborn extrauterine children,” that storage tanks are actually called “cryogenic nurseries,” and that clinics may be liable for manslaughter if something happens to the embryos under their care. Roll Tide … of severe consequences.

The Alabama Supreme Court’s ruling led to the immediate shutdown of Alabama fertility clinics’ in vitro fertilization (IVF) services until they could figure out what the hell was going on. The results were devastating, as hopeful parents-to-be had procedures cancelled and faced abrupt uncertainty in their already difficult paths to parenthood.

The eyes of the nation turned to the Heart of Dixie. In response, the Alabama Legislature moved quickly. Alabama Gov. Kay Ivey signed an IVF protection bill into law on March 6, 2024 — a mere 19 days after the Alabama Supreme Court handed down its decision. Light speed for government work. And once the new law passed, Alabama IVF clinics resumed offering IVF services to fertility patients.

So the Alabama Legislature accomplished what it intended, right? Well, yes. But when you rush to do damage control, sometimes you also rush into unintended consequences.

What Does The New Law Say?

Alabama amended its law with respect to in vitro fertilization, and states that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Simple enough, right?

Another section of the law extends those protections to “manufacturer[s] of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.” And the law specifies that it is intended to be remedial and to apply retroactively. In short, the Alabama Legislature was so worried about the shutdown of IVF services that it essentially offered complete civil and criminal immunity to anyone in the IVF industry in the state.

So now clinics, medical providers, manufacturers, and transporters, among others, do not need to worry about manslaughter charges if something happens to a patient’s embryos during the course of treatment or business. But does the law now extend too broad of a shield, to the point that clinics don’t even need to try to meet industry standards to protect their patients’ embryos?

Blanket Immunity

Actually, maybe yes. We can agree that fertility services are in high demand, and that they are incredibly important and meaningful to those needing assistance. And we don’t want clinics to shut down out of fear of liability. So there’s a delicate happy medium between patient care … and accusations of manslaughter.

With respect to the former, there may, in fact, be instances where negligence and even intentional misconduct can cause the loss of embryos. In those cases, we may want a patient — in the interest of fairness — to have a legal course of action.

In one case in California, for instance, a storage tank imploded, causing the loss of approximately 4,000 eggs and embryos. In 2021, the claims of five — out of hundreds — of the patients who lost reproductive materials in the tank failure made it before a jury. The jury found that the manufacturer was liable for defects with the storage tank, and the clinic was liable for failing to properly monitor the tank, and apportioned liability for a $15 million judgment in favor of the patients.

I am sure that the manufacturer and California clinic in that case would have appreciated a protective statute like that passed in Alabama.

Dov Fox, a law professor and the author of “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” explains the situation this way, “First the Alabama Supreme Court overdeterred fertility clinics to shut down or leave the state for fear that even slips of the hand or reasonable accidents, like an embryo sticking to the side of a pipette, could leave them legally accountable for a wrongful death and millions in damages. Now, the Alabama Legislature has codified a liability shield that would underdeter the harms that come from deficient quality controls and negligent misconduct, by immunizing IVF providers for even egregious misconduct. A better path would steer in between these extremes.”

The Heart(beat) of the Problem

The fundamental problem lies in the disagreement as to what embryos are, and how to value their loss. Fox’s new paper with Professor Jill Wieber Lens argues that courts should allow recovery for reproductive loss in a way that balances plaintiffs’ subjective experience of that loss against the objective chances that they would have had to take home a baby, assuming everything had gone right.

While the Alabama Legislature agreed that it wanted IVF to continue, and it wanted to protect providers, the law still refers to the “death” of embryos. That is not a term fertility professionals use. Because, to the provider, embryos are not “unborn extrauterine children,” but instead reproductive tissue that may be viable, and contain the potential for reproduction or, alternatively, nonviable and unable to develop further.

But the personhood movement — at least that portion of it that extends personhood to extrauterine embryos – can’t be happy with this legislation. And the latest developments are unlikely to be anything near a final resolution of the issue, either in Alabama or elsewhere in the country.

Moreover, this legislation may be headed for a state constitutional challenge. The Alabama Supreme Court’s February 16 opinion noted that “the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.” Does that constitutional amendment also prevent the legislature from excluding embryos from legal protection?

The answer for a corrective legal course that threads the needle is to recognize that reproductive tissue: eggs, sperm, and embryos, are special and carry with them the potential of human life. But they aren’t there yet. They are not persons. But they are also not just property. They are something in between.

The Good Outweighs

On balance, weighing the good of having access to fertility clinics open for business and available to help hopeful parents, but losing legal paths to hold providers accountable when they fall below appropriate standards, I’ll take the Alabama law’s quick fix. For now. Hopefully other motivators — like pride in one’s work, a desire for referrals and positive reviews to bring future patients, and other incentives (besides the fear of litigation) will keep Alabama clinics accountable, in the absence of legal accountability. But once cooler heads prevail, it would be good to revisit the topic to protect patients, in addition to providers, in the Yellowhammer State.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.