IVF Caught in the Crosshairs: The Aftermath of the LePage Decision

I. Alabama Legislation Following LePage

On March 7^th, the Alabama Legislature passed SB159 (“SB159” or the “bill”), as a means of granting certain protections to IVF clinics and providers in the wake of the LePage v. Center for Reproductive Medicine decision. The bill among other things, grants civil and criminal immunity to any individual or entity in connection with death or damage to an embryo when providing or receiving services related to in vitro fertilization (“IVF”). The protections afforded by SB159 apply to (i) manufacturers of goods used to facilitate the IVF treatments and (ii) individuals engaged in the transportation of the stored embryos. Once enacted, the new law would take retroactive effect to shelter providers and suppliers engaged in providing IVF treatments as of the LePage ruling. 

The Alabama Supreme Court’s February 16^th decision in LePage gave personhood to “extrauterine embryos” extending liability for wrongful death cases to include unimplanted embryos. In deciding, the court held that the statutory term “child” under Alabama’s 1872 Wrongful Death of a Minor Act, included unborn children without exception based on developmental stage, physical location, or any other ancillary characteristics. The court’s decision raised a myriad of issues for Alabama medical professionals engaged in the process of IVF, including the possibility of becoming subject to a host of legal actions and professional liability. As an immediate consequence of this ruling, three of Alabama’s largest IVF treatment providers stopped providing IVF services for fear of being held potentially liable in wrongful death lawsuits related to their handling of embryos.[1] 

SB159 aims to resolve some of the issues raised by the LePage decision, by paving the way for fertility clinics that paused IVF services, including Alabama’s largest health care system, University of Alabama at Birmingham, to restart IVF treatments and provide patient care once again. However, some experts are concerned that the bill does not go far enough in addressing the court’s underlying conclusion that embryos are people.[2] Additionally, the bill fails to explicitly state when life begins, leaving additional loopholes in the protections afforded to IVF providers and clinics. The American Society for Reproductive Medicine issued a press release stating although Alabama legislature provided a temporary solution, the bill did not address whether a fertilized egg is legally equivalent to a child, thus leaving IVF physicians and clinics at risk of liability for continued IVF treatments.

II. Current and Ongoing Legislation for Consideration

Although the LePage decision stands out as a unique ruling, a number of states have either enacted, or are considering similar legislation regarding the treatment of extrauterine embryos. Louisiana (RS § 9:121) and Georgia (O.C.G.A. § 1-2-1) have enacted or proposed legislation which recognizes IVF embryos as having personhood, extending criminal and civil penalties for the destruction or termination of these embryos. Missouri statute, MO Stat § 1.205, asserts that life begins at conception and accords the unborn child all rights, advantages, and immunities much earlier than the remaining states. Florida had introduced SB 476 which would have extended civil liability for wrongful death to those of an unborn child, however the bill was sidelined following the recent decision and subsequent constituent outcry in Alabama. On the federal level, the Access to Family Building Act, which would have provided protections to IVF, was ultimately blocked by objection in the senate.

III. The Aftermath of LePage

The Aftermath of the LePage decision leaves an uncertainty in the IVF treatment space. Despite recent comments from Katherine Robertson, chief counsel for the Alabama Attorney General’s office, stating that “Attorney General Marshall has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers”, many IVF clinics/providers remain on high-alert regarding their actions within the state. A concern that is certain to affect how IVF services are provided and received within the state. Although, Alabama’s SB159 proposes a stop-gap resolution regarding the punitive response to IVF providers, it still leaves a number of unanswered questions regarding IVF procedures and treatments by providers.[3] Future concerns center on the effects of patients who are compelled to travel across state lines for medical care or adopt different approaches in order to minimize possible liability.

In the wake of Dobbs v. Jackson Women’s Health Organization, the potential for states to regulate IVF appears to be gaining momentum as seen by LePage in Alabama and recent legislative developments. We will continue to monitor similar litigation and legislation as they continue to arise in other states across the country.

FOOTNOTES

[1] Alabama bill to protect IVF signed into law by governor – ABC News

[2] “[The law] does not nullify the Supreme Court’s analysis that says the law ought to treat embryos just like people,” Katherine Kraschel, an assistant professor at Northeastern University School of Law. Alabama clinics resume treatment under new IVF law, but experts say it will take more work to protect fertility services | CNN

[3] Alabama passes IVF immunity law: NPR