Democrats file bills to protect IVF, clarify that an embryo cannot be considered an “unborn child”

Bills to safeguard in vitro fertilization providers in Kentucky from criminal liability and to codify wording that a fertilized human embryo cannot be considered an “unborn child” were filed this week by Democrats.

Kentucky Democrats — and potentially Republicans — are moving to codify these protections into law in the wake of a ruling this month from the Alabama Supreme Court upholding a couple’s decision to sue a fertility clinic for wrongful death after the accidental destruction of the couple’s frozen embryos. The Alabama high court concluded that frozen embryos are “human beings” and as such, fertility clinics can be held criminally liable for their destruction.

The unusual ruling sent shock waves across the state, pushing some fertility clinics to temporarily stop offering IVF services, including the University of Alabama at Birmingham’s hospital system.

Sen. Cassie Chambers Armstrong, D-Louisville, filed Senate Bill 301 to codify those protections for health care providers in Kentucky statute. Her proposed language succinctly states: “There shall be no criminal liability against a provider engaged in assisted reproduction who meets the professional standard of care.”

In this bill’s case, “provider” refers to any licensed, certified health care facility or provider of health services. And “assisted reproduction” applies to the current statutory definition, which is a “method of causing pregnancy other than through sexual intercourse,” which includes in vitro fertilization, or IVF.

“I saw what happened in Alabama and had a lot of conversations with friends and family members who have grown their families through IVF or are in the near future going to go through IVF,” Chambers Armstrong told the Herald-Leader. “This bill is intended to protect that ability for Kentuckians.”

Louisville Democratic Rep. Daniel Grossberg’s bill takes the wording of Chambers Armstrong’s bill a step further in House Bill 757, filed Monday.

Grossberg proposes the state adopt statutory language making clear that a “fertilized human egg or human embryo that exists in any form outside of the uterus of a human body shall not 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.”

Kentucky Republicans have tirelessly sought to restrict and ban abortion in the commonwealth — a move that, for many, is rooted in a belief that life begins at conception, therefore destroying a pregnancy is destroying a human life.

That tenet of belief aligns with current Kentucky statute, which defines an embryo as a human being” a “fetus” is a “human being from fertilization until birth,” and defines a “human being” as “any member of the species homo sapiens from fertilization until death.”

But the GOP has remained relatively silent on IVF, with some members publicly proclaiming support for the procedure. In a meeting with reporters Tuesday morning, Senate President Robert Stivers, R-Manchester, said the Senate was “looking at” filing a bill to explicitly protect access to IVF.

Though it does not explicitly mention IVF, Republicans have moved House Bill 159, a proposal to protect health care providers from criminal liability in the event of an accident. The bill, from Rep. Patrick Flannery, R-Olive Hill, defines “health services” and “health care providers” as including individuals and facilities that are licensed and certified in the state — a definition that would include fertility clinics offering IVF.

Chambers Armstrong cited the recent and controversial Alabama Supreme Court ruling as the primary impetus for her bill.

Citing the oft-held Judeo-Christian belief that life begins at conception, the state’s high court agreed that those embryos were protected under Alabama’s Wrongful Death of a Minor Act.

Chief Justice Tom Parker wrote in the majority opinion that Alabama had adopted a “theologically-based view of the sanctity of life,” which included the following tenets: “God made every person in his image; each person therefore has a value that far exceeds the ability of human beings to calculate; and human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of his image as an affront to himself.”

These tenets, Parker continued are “true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God and their lives cannot be destroyed without effacing his glory.”

Chambers Armstrong said Tuesday this decision and its ripple effects across the nation “have placed IVF providers in a precarious legal position, prompting many to halt treatment services,” adding that she hopes the bill will “clarify” Kentucky’s law around these services.

“This bill has a clear objective: to protect IVF providers, enabling them to continue their vital work,” she said in a statement. “Kentuckians pursuing IVF treatments should not fear the abrupt cessation of these services. Every individual aspiring to start a family deserves the opportunity to do so.”

Her bill wouldn’t stop an individual from bringing a civil cause of action against an employee of a fertility clinic, for example, acting with negligence and destroying embryos. But the bill would shield them from criminal liability.

Grossberg’s bill also seeks to codify these protections, but through slightly different wording: Kentucky “shall not prohibit, unreasonably limit, or interfere with” an individual’s right to “access assisted reproductive technology,” or a health care providers ability to offer that service, which includes IVF.

Gov. Andy Beshear, a Democrat, signaled his support for these bills on Tuesday in a tweet, saying, “everybody deserves the chance to decide when and how to start a family — on their own terms.”

Chambers Armstrong said she has good reason to belief her bill will have some amount of bipartisan support.

Earlier on Tuesday, after his bill allowing child support to be collected beginning at the point of conception won approval from the Senate Health and Family Services Committee, Sen. Whitney Westerfield, R-Fruit Hill, said while he believes that life begins at conception, he has personally benefited from IVF and doesn’t want to limit access to it.

“I believe life begins at conception. I believe embryos are human lives,” Westerfield told reporters, adding that he agrees with the “fundamental truth” foundational in the Alabama high court’s ruling.

“But as someone who has personally benefited from IVF a couple different times — my wife is pregnant with triplets right now from embryos we adopted from a family through IVF — it needs to be available to families who will use it.”

Westerfield said he’s considering filing a similar bill to protect IVF access before the Senate’s bill filing deadline later Wednesday.

In the House, Rep. Amy Neighbors, R-Edmonton, has filed House Bill 243, which would also set the time when a pregnant person can legally begin collecting child support at the point of conception. It has yet to receive a committee hearing.

Undergirding each of these child support measures is the idea of fetal personhood, and at what point a fertilized egg or fetus is legally considered a person in Kentucky.

That’s what worries Kentucky State Director for Planned Parenthood Alliance Advocates Tamarra Wieder.

SB 110, Westerfield’s bill that allows child support to be collected starting at the point of conception, “sets the stage for personhood” and is “therefore a slippery slope, one that leads us in the same direction as Alabama with IVF.”

This story may be updated.