Alabama senator planning to file bill that could protect in vitro fertilization

Alabama state Sen. Tim Melson, R-Florence, speaks with a colleague on the floor of the Alabama Senate on Feb. 22, 2024, at the Alabama Statehouse in Montgomery, Alabama. Melson said Thursday he planned to file a bill to address a recent Alabama Supreme Court ruling declaring that frozen embryos are children, a decision that put in vitro fertilization procedures in the state in jeopardy. (Brian Lyman/Alabama Reflector)

The chair of the Alabama Senate’s Healthcare Committee plans to file a bill that could add protections for in vitro fertilization in the state amid mounting criticism of an Alabama Supreme Court decision putting IVF in jeopardy.

Sen. Tim Melson, R-Florence, said Thursday morning the bill would clarify that embryos are not viable until they are implanted in the uterus.

“We all know that conception is a big argument that it’s life,” Melson said. “I won’t argue that point, but it’s not going to form into a life until it’s put into the uterus.”

Melson’s move came almost a week after the Alabama Supreme Court ruled in a lawsuit that frozen embryos are children and as IVF programs shut down in the state. The decision has brought denunciation from many quarters, including the White House.

Alabama House Democrats filed their own bill on Thursday that would declare that a fertilized egg or human embryo outside the human body is not a person.

Writing for the majority in the Supreme Court case, Justice Jay Mitchell wrote that there were no exceptions for frozen embryos under an 1872 law allowing civil suits for wrongful deaths of minors or under the 2018 constitutional amendment that requires the state to ensure the protection of fetuses.

“The upshot here is that the phrase ‘minor child’ means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: ‘an unborn or recently born’ individual member of the human species, from fertilization until the age of majority,” Mitchell wrote. “Nothing about the act narrows that definition to unborn children who are physically ‘in utero.’ Instead, the act provides a cause of action for the death of any ‘minor child,’ without exception or limitation.”

Not ‘penalized for success’

Embryologist Ric Ross holds a dish with human embryos at the La Jolla IVF Clinic Feb. 28, 2007, in La Jolla, California. The University of Alabama Birmingham on Wednesday said it was stopping IVF treatments after the Alabama Supreme Court ruled that frozen embryos were children. (Sandy Huffaker/Getty Images)

Melson’s draft legislation says that  “any human egg that is fertilized in vitro shall be considered a potential life but shall not be considered for any purposes a human life, a human being, a person, or an unborn life unless and until the fertilized egg is implanted into a woman’s uterus and a viable pregnancy can be medically detected.”

Melson told reporters Thursday afternoon that it was time to figure out some of the consequences of IVF technology, and that a woman should not be charged with abandonment or manslaughter if she chooses not to use all of her frozen embryos.

“When a lady is two or three successful pregnancies and these are left over, it’s just time to make sure that they aren’t penalized for success,” he said.

Melson said that, after a discussion with Legislative Services Agency, he does not think it will require a constitutional amendment.

Two more programs close

Fertility experts and reproductive health groups said the ruling will end IVF treatments in the state. The University of Alabama Birmingham said Wednesday that it would pause its IVF program amid fears that patients or staff could be prosecuted under the decision.

Two more programs announced Thursday that they were pausing treatments.

Mobile Infirmary said Thursday it will stop its IVF program as of Feb. 24.

Mark Nic, president and CEO of Infirmary Health, the parent company, said in a statement that the recent ruling left them “no choice.”

“We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving,” the statement said.

The statement said they are preparing embryos for transfer. A message seeking comment was left with a spokesperson for the company.

Alabama Fertility Clinic, based in Birmingham, said on Instagram that they “made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists.”

“At a time when we feel so powerless, advocacy and awareness is our strongest tools,” the statement said. The clinic said it would not close and will “continue to fight for our patients and the families of Alabama.”

A request for comment was left with the clinic.

Criticism and reaction

Alabama House Minority Leader Anthony Daniels, D-Huntsville, in the chamber of the Alabama House of Representatives on Tuesday, June 6, 2023. (Stew Milne/Alabama Reflector)

President Joe Biden condemned the Alabama Supreme Court’s ruling on Thursday, saying it was “a direct result of the overturning of Roe v. Wade.”

“A court in Alabama put access to some fertility treatments at risk for families who are desperately trying to get pregnant,” the president said in a statement. “The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.”

The House Democrats’ bill, HB 225, is sponsored by House Minority Leader Anthony Daniels, D-Huntsville. The bill says that “any fertilized human egg or human embryo that exists in any form outside of the uterus of a human body shall not, under any circumstances, be considered an unborn child, a minor child, a natural person, or any other term that connotes a human being for any purpose under state law.”

Unlike Melson’s legislation, the bill does not say that fertilized human eggs or embryos are potential life. It also does not require medical detection to establish a viable pregnancy.

Daniels said in an interview on Thursday that he did not work with Melson, but he was interested in seeing his bill.

“I just felt the need to address this issue fairly quickly because of the urgency of it and that ruling was total a total shocker,” he said. “So I just think we need to provide more clarity.”

Rep. Paul Lee, R-Dothan, chair of the House Health Committee, said Thursday the Alabama Supreme Court’s ruling “will not go unattended.”

“It’s going to be addressed and there is work being done on it,” he said.

He added that he does not know what the legislation will look like yet and they still have “to understand what it needs to happen.”

Rep. Phillip Ensler, D-Montgomery, said that the ramifications of the ruling are clear, and that people are horrified by what this could mean for people’s freedom to make healthcare decision for themselves.

“This isn’t a game. This isn’t just politics, and ‘let’s score some points to be able to put in a campaign out’ — these are real people’s lives that are very, very affected and in a very intimate way,” he said.

Melson said “we have technologies advanced beyond what we expected” in the past, and said he wants to make sure there are protections for IVF clinics should power failures or wrecks during transportation cause the loss of frozen embryos.

“I’m just trying to make sure it’s clear on what should be done and how we should handle it,” he said.

Ensler argued that because there was no definition of embryos or IVF treatment in statute, the Alabama Supreme Court applied their own definition.

“The [Alabama] Supreme Court, in their ruling, they claimed that they were following existing law. So, what we’re doing is essentially clarifying, or what we should do is clarify existing law so there’s not any ambiguity or room for the Supreme Court to interpret it or apply it in a different way,” he said.

Rep. Chris England, D-Tuscaloosa, who’s sponsored reproductive rights legislation in the past, said that the IVF ban adds to “the list of things” that make people not want to live in Alabama, since it’s the only way some people can start a family.

“It’s going to make people want to leave,” he said.

Alabama Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: info@alabamareflector.com. Follow Alabama Reflector on Facebook and Twitter.

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