Alabama’s IVF Protection Law Shows The People’s Check On The Courts

There’s good news and bad news in Alabama’s new IVF law.

The Alabama Supreme Court (photo by Rex Wholster via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece (which is subject to a length limit). You can think of the footnotes as a form of “bonus content” for Original Jurisdiction subscribers.

Last month, in LePage v. Center for Reproductive Medicine, the Alabama Supreme Court ruled that an unimplanted human embryo is a “child” for purposes of the state’s wrongful-death statute. The court held that intended parents with embryos created through in vitro fertilization (IVF) can sue their IVF clinic for wrongful death, rather than negligence, if their embryos are destroyed through the clinic’s fault.

The LePage ruling, believed to be the first time a court has held that IVF embryos can be “children,” generated widespread alarm among supporters of IVF treatment. It was described in media as a “devastating anti-IVF ruling” that could imperil IVF for the hundreds of thousands of patients who turn to it each year.

In the short term, the ruling led IVF clinics in Alabama to pause treatments, as they—and their lawyers—assessed their potential civil or criminal liability. Emory law professor Tonja Jacobi expressed the fear that IVF could become “legally fraught and practically threatened.” One reproductive-rights advocate suggested the ruling could lead to IVF “deserts”—states or regions where IVF, like abortion, is simply unavailable.

As the father of two sons who wouldn’t exist without IVF, I have a firsthand appreciation for the value and importance of this process. But I also thought some of the initial fear might have been overblown—especially in light of how quickly Alabama legislators started considering legislation to protect IVF after LePage.

Sure enough, on March 6—less than three weeks after the February 16 ruling—Governor Kay Ivey (R-Ala.) signed into law SB159. The statute provides IVF clinics with broad civil and criminal immunity. Clinics in Alabama have since resumed IVF procedures.

The new law, which went into immediate effect, has some problems—perhaps because of how quickly it was put together. SB159 provides 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.” Such expansive immunity could leave couples whose IVF embryos are damaged or destroyed, like the plaintiffs in LePage, without legal recourse.¹

“The swift action by the Alabama legislature to get IVF clinics open again was a good thing,” said Ellen Trachman, a lawyer and commentator focused on the law of assisted reproductive technology. “But it may have gone too far.”²

“There are already problems with holding clinics legally accountable for damage to embryos,” Trachman told me. “With this blocking of liability, the Alabama law goes even further.”

In the wake of SB159, IVF clinics in Alabama may enjoy more protection than their counterparts in many other states, where they can be sued for negligence or gross negligence. Trachman cited a California case in which families who lost embryos and eggs in a cryopreservation-tank failure sued the tank manufacturer and IVF clinic—and won a $15 million verdict. That wouldn’t be possible in Alabama.

According to Ed Whelan of the Ethics and Public Policy Center, who wrote about LePage for the National Review, what was needed here was a “one-sentence bill that states that the word ‘child’ in [the wrongful-death] statute does not include IVF embryos.” But instead of this “simple fix,” the legislature bestowed sweeping immunity on IVF clinics.³

“I think the Alabama legislators here got played,” he told me.

It appears, however, that SB159 was intended as a stopgap, not a permanent fix. As Governor Ivey wrote in her signing statement, it was meant to be a “short-term measure” that would “provide the assurances our IVF clinics need… to resume services immediately.”

So despite its flaws, SB159 is good news. As Trachman put it, “I don’t want to take away from the win. The fact that the legislature acted swiftly and the clinics are open again is great.”

And there’s a broader lesson here: The democratic process worked.

The judiciary did its job by interpreting the law—here, Alabama’s Wrongful Death of a Minor Act—and by applying the law to the cases before it. The ruling led to a result—the cessation of IVF in the state—that Alabamians found objectionable. They shared their concerns about the ruling and its implications with elected officials. And then the legislature and executive branches sprang into action, passing and signing a law to address the situation.

What happened in Alabama reminds us of the limited power of the courts. The judiciary’s job is to say what the law is, not what it should be—and judges don’t have the last word.

If we the people don’t like the law as it is, we can call upon the legislative and executive branches to address it. Or in the case of rulings based on the U.S. Constitution, which are admittedly much harder to override, we can amend the Constitution (which should be much easier to amend, but that’s a topic for another day).

We shouldn’t be too quick to blame the judiciary for societal problems—or expect the judiciary to solve them. That’s arguably one lesson to take away from the U.S. Supreme Court’s recent ruling in Trump v. Anderson, holding that individual states lack the authority to keep Donald Trump off presidential ballots. Trump must be defeated at the ballot box, not in the courtroom.

Or as Harvard law professor Noah Feldman wrote—in the context of Trump v. Anderson, but his words have broad applicability—“it’s up to we the people to save our democracy.”

---

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

1. The plaintiffs in LePage will be able to proceed with their litigation because the law “is intended to apply retroactively to any act, omission, or course of services which are not the subject of litigation on the effective date of this act” (emphasis added).

2. In her Above the Law column about the new Alabama law, Trachman quoted Professor Dov Fox, who summed up 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.”

For more on this topic, see Professor Fox’s new paper (co-authored with Professor Jill Wieber Lens), Valuing Reproductive Loss, published in the Georgetown Law Journal.

3. Why didn’t the Alabama legislature simply amend the wrongful-death statute to exclude IVF embryos from the definition of “child”? Two possibilities occurred to me.

First, some Republicans might not have been on board with this possible fix. Alabama Democrats proposed legislation that would have provided that “an extrauterine embryo is not an ‘unborn life’ or ‘unborn child.’” But according to a Republican state senator, Tim Melson, “Some people feel that we don’t need to go down that road when we’re determining when life begins.”

Second, as noted by Trachman, the Alabama Supreme Court stated in LePage that “the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection”—specifically, Section 36.06 of the Alabama Constitution, which declares that ‘it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.’”

So changing the definition of “child” in the wrongful-death statute to exclude IVF embryos might have been open to constitutional challenge, on the ground that it violates Section 36.06 of the Alabama Constitution. In contrast, immunizing IVF clinics doesn’t redefine “child”; it simply bars lawsuits against clinics based on the existing definition of the term.

As pointed out by Trachman, one could still try to mount a constitutional challenge by arguing that the broad immunity for IVF clinics effectively or functionally redefines the terms “life” and “child,” in violation of the Alabama Constitution. This might explain why the Democratic legislators’ proposal to exclude extrauterine embryos from the definition of “life” or “child” took the form of a proposed constitutional amendment to Section 36.06, which would have provided that an IVF embryo is not an unborn life or child “[f]or the purpose of this section.”