‘We’re in danger of losing IVF altogether:’ Calls for more regulation grow from Alabama lawmakers

A growing bipartisan call is surfacing in Alabama long before state lawmakers return to Montgomery next spring: Something needs to be done to clarify what is and isn’t allowed when it comes to IVF in the state of Alabama.

The latest calls came after a New York Times story published Monday highlighted efforts by four of seven Alabama fertility clinics to move embryonic cells out of the state and store them or possibly dispose of them elsewhere.

The reason for the effort? To eliminate the sticky issue of embryo storage in a state where too many legal unknowns hang over a procedure that remains popular with Americans.

“As a fertility advocate, an IVF mother, I feel that the steps taken by clinics to protect patients’ rights and decision-making authority over their embryos are brave and creative,” said AshLeigh Dunham, a Hoover-based family attorney. “We begged the Legislature to act when the Supreme Court usurped the Legislature’s lawmaking authority, but they just created a band-aid to allow the clinics to open.”

She added: “While this is appreciated, it is not permanent and will not help our citizens at risk to stop IVF altogether.”

The only regulation passed by lawmakers came in March, after the Legislature quickly moved a bill that would have given health care providers immunity if frozen embryos are destroyed during procedures or storage.

The move comes after IVF was changed in Alabama after the Alabama Supreme Court ruled in February that the state’s wrongful death law applied to frozen embryos used during IVF procedures.

Pass another law

Five months have passed and nothing else has come out, and the Republican lawmakers who spearheaded the immunity bill aren’t saying much.

Efforts to reach state Rep. Terri Collins, R-Decatur, and Sen. Tim Melson, R-Florence, for comment were unsuccessful. Both lawmakers guided the swift passage of the immunity bill during last spring’s legislative session.

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Democratic lawmakers, who see a political advantage in the issue, say lawmakers must act soon.

“The public was led to believe that the immunity bill would solve the problem,” said state Rep. Anthony Daniels, D-Huntsville, who is the minority leader of the Alabama State House. “I knew it wasn’t going to solve the problem because it didn’t provide enough clarity. As you can see now, it doesn’t solve the problem in the long run.”

Anti-abortion conservatives and the head of the Alabama GOP say more clarity is needed on a procedure popular with Americans.

“It’s a thorny issue to deal with,” said Eric Johnston, an attorney who helped draft Alabama’s constitutional language on abortion in 2018 and is president of the Alabama Pro-Life Coalition. “I’m not saying they have to do it right now, but at some point, they have to deal with it.”

Conservative viewpoints

Alabama state GOP chairman John Wahl said Republicans support IVF and that the procedure is “completely consistent” with the party’s “pro-life and pro-family” platform. He said the party has a problem with “the lack of policy and regulation of the process around the embryos themselves,” which he believes needs to be addressed by state lawmakers.

“Louisiana is currently the only state that has an IVF law that gives personhood to embryos,” Wahl said. “The Republican Party of Alabama strongly believes that IVF can be done while respecting the sanctity of life.”

Not all right-wing and anti-abortion organizations share this view. The Southern Baptist Convention, during its annual meeting in June, voted against IVF and criticized the procedure for allowing people to have children outside of heterosexual marriage.

But the SBC’s Ethics and Religious Liberty Commission shares Wahl’s views that the Alabama Legislature needs to do more.

Brent Leatherwood, the commission’s chairman, said in a statement that the IVF industry had been “allowed to operate without oversight and accountability for years.”

He said reports of clinics transferring embryos to other states are “the inevitable and imminently predictable result when political expediency is the driving force behind a decision.”

Leatherwood compared embryo shipping to other states to “abortion travel and tourism” and said, “like those actions, this should be opposed.”

“Alabama lawmakers were presented with an opportunity to really protect life and they blinked,” he said.

The Christian Coalition of Alabama says there is a place for IVF to help pregnancies so couples can have families.

IVF is a difficult, lengthy and expensive treatment that involves fertilizing a woman’s eggs with sperm in a laboratory to create a microscopic embryo. The fertilized embryo is then transferred to a woman’s uterus, where it can create a pregnancy. IVF pregnancies account for a little more than just 2% of US pregnancies over the course of a year.

Dr. Randy Brinson, president of the Alabama Christian Coalition, echoed Wahl’s sentiments, saying it shouldn’t be considered “onerous” for clinics to protect the embryos they produce and not “discreetly eliminate frivolous”.

“I would push the Legislature to determine what the best approach is and try to get a lot of people in the profession and obstetrics and those in the pro-life community and put us together on some reasonable legislation going forward. that protect the embryos and have them where people could adopt embryos for future pregnancies so that those lives are not excessively thrown away,” Brinson said.

Legal challenges

Democratic lawmakers say they plan to introduce legislation of their own, but not what Brinson or Wahl advocate.

Daniels said she wants lawmakers to consider legislation she sponsored last year that “clearly defines a fertilized embryo as not being a child.”

According to Daniels, clarifying personhood in Alabama would go a long way toward eliminating fear and uncertainty among families and doctors who practice IVF.

Daniels said there are high stakes if Alabama doesn’t do more.

“Many of these things will and have affected our ability to recruit families to the state of Alabama and retain young people in the state of Alabama who may see this as their last best option if they’re having trouble having a child Daniels said. . “Basically, we’re taking those options off the table. We need to address this now.”

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Susan Pace Hammill, a law professor at the University of Alabama School of Law, said the lack of follow-up legislation beyond the “Band Aid” lawmakers approved in March leaves too many legal questions unresolved.

“Not wanting to aggravate the Supreme Court or the far right, they left open the issue of the status of the embryo while supposedly protecting the clinics,” Hammill said. “That leaves open the possibility in the future of another challenge that could render what the Legislature did ineffective, or the Supreme Court could decide that what the Legislature did is not constitutional.”

She added: “All of this creates a lot of uncertainty in a state known for flamboyant political backlash based on emotional far-right ideology – not exactly where patients, doctors and their providers feel safe keeping embryos.”

How to regulate

Brinson said he hopes a forum next month at Troy University will offer some solutions from academic, legal, medical and ethical perspectives and “provide advice to the governor and the Legislature on how to move forward” with future IVF regulations.

But Dunham said the whole process is troubling, both in Montgomery and in Washington, DC, where lawmakers remain at odds over how to go about protecting IVF nationally.

“The regulation of IVF by non-medical legislators is terribly trending terminology being passed around by legislators,” she said. “No other area of ​​the medical field is regulated by our legislators.”

She added, “The Legislature should act on their constituents and protect IVF at the state level. Infertility is on the rise. The need for procedures (assisted reproductive technology), especially IVF is increasing. However, because of the Supreme Court and the current lack of protections enacted by our Legislature, we risk losing IVF altogether.”

Dunham noted Monday’s announcement of the early 2025 closing of Huntsville Reproductive Medicine in Madison, which was named in the New York Times article as one of three clinics working with a company called ReproTech to move embryos from Alabama.

A representative from ReproTech could not be reached for comment. An answering machine from the Huntsville clinic indicated they were formulating a plan for the embryos. “Be assured they are safely stored at HRM,” the recording says.

A social media post about the clinic’s pending closure says the decision to do so is unrelated to the fallout from the Supreme Court ruling.

“There are few clinics in Alabama … our legislators must act and protect IVF as soon as possible, or access to family building will be severely limited,” Dunham said.