Mar 4, 2024 - Politics & Policy

Alabama IVF bills are a "Band-Aid" to explosive court ruling

Illustration of a cracked petri dish being used for IVF.

Illustration: Annelise Capossela/Axios

Families considering starting IVF treatments in Alabama still face a host of unknown legal risks despite new protections Gov. Kay Ivey plans to sign into law, experts warn.

Why it matters: Courts could ultimately consider new legislation, designed to help protect clinics from civil lawsuits and prosecution, contradictory to the state constitution's provision on the sanctity of unborn life.

  • "It's a Band-Aid," said Susan Pace Hamill, a law professor at the University of Alabama. "It's not the answer."
  • Legislation passed both GOP-led chambers by huge margins last week as Republicans face intense national scrutiny after the state's high court ruled frozen embryos are legally children.

Friction point: Alabama justices in their ruling cited a 2018 constitutional amendment that recognized the "rights of unborn children," essentially giving a fetus the same rights as a person.

  • "The Republican bills don't address that issue," Hamill said. "They just say you can't get prosecuted, you have immunity, which is sort of avoiding the issue you created to begin with."

Between the lines: Alexis Cirel, a fertility lawyer with expertise in embryo disputes, said she wouldn't recommend anyone to begin IVF treatment in Alabama, despite the legislation.

  • "The stakes are too great," she said. "There are such far implications about what this could mean in terms of creating and storing embryos there, it's just not worth it."

Experts aren't sure whether patients or providers involved in IVF can be confident they have immunity from prosecution in Alabama, Hamill said. There's risk under the law as it stands, or of courts getting involved.

  • "Anybody who is considering that option who hasn't gotten started yet should definitely not do it here," she said.

Zoom out: Reproductive rights advocates have pointed to the Supreme Court's 2022 Dobbs decision as a catalyst for the growing threats to IVF.

  • The personhood movement, which is attracting attention in the wake of the Alabama court's decision, borrows from the same concept as abortion bans: defining human life at the moment of fertilization or conception.

Go deeper: Why successful IVF often requires making multiple embryos for one baby

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