MONTGOMERY, Ala. – LeeLee Ray went through eight miscarriages, one ectopic pregnancy and multiple surgeries before turning to surrogacy in her hopes of having a child.
She and her husband found a surrogate through a matching program, and they hoped to soon transfer frozen embryos. But now that plan is in doubt as Alabama fertility clinics paused IVF services in the wake of a state court ruling that embryos are considered children under the state's wrongful death law.
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“I’m just frustrated. We had a light at the end of the tunnel,” Ray said. She said they can’t transfer their frozen embryos to their surrogate and can’t move the embryos out of state. Ray was one of more than 200 IVF patients who descended on the Alabama Statehouse Wednesday to urge lawmakers to find a way to restore IVF treatment in the state.
Republican lawmakers promised swift action and advanced proposals to provide criminal and civil lawsuit protections to in vitro fertilization service providers. But GOP lawmakers — navigating both a backlash over the IVF decision and hardline abortion opponents in their own party — steered clear of trying to define whether the embryos should be considered human life.
“We're trying to find a solution ... It should get the clinics back open,” Republican Sen. Tim Melson, a doctor and sponsor of one of the bills, said of the immunity proposal.
Alabama justices this month said three couples who had frozen embryos destroyed in an accident at a storage facility could pursue wrongful death lawsuits for their “extrauterine children.” In reaching the decision, Alabama justices cited anti-abortion language added to the Alabama Constitution in 2018, saying the state recognizes and protects the “rights of unborn children.” The constitutional amendment was approved by 59% of Alabama voters.
The ruling, treating an embryo the same as a child or gestating fetus under the wrongful death statute, raised concerns about civil liabilities for clinics. Three clinics announced a pause on IVF services.
Melson shelved an earlier proposal that said an embryo should not be considered a human life until implanted in the uterus.
“There's a lot of different opinions on what's alive, what's viable, what's not,” Melson said Wednesday.
Some conservative groups had expressed concern about proposals that would exclude embryos from the definition of human life. Eagle Forum of Alabama issued a statement urging lawmakers to avoid "legislation that may be in direct violation of our Constitution as well as the clear definition of human life.”
“Life begins at conception, not implantation,” Eagle Forum stated. The group urged lawmakers to find a way to let IVF treatments proceed, but also supported prohibitions around the destruction or donation of viable embryos.
Some lawmakers questioned the need to pause IVF. Republican Sen. Larry Stutts, an obstetrician who is also sponsoring one of the proposals, noted that some clinics “never closed.”
A Democratic senator said Wednesday that Republicans are not "dealing with the issues that got us here." Some House Democrats have proposed legislation to state that a human embryo outside of a uterus “is not considered an unborn child or human being for any purpose under state law.”
“Unless we redefine this as to whether an embryo is a child — and if we don’t deal with the elephant in the room that got us to this place — we’re going to be back here,” Sen. Linda Coleman-Madison, a Democrat from Birmingham, said.
Rep. Chris England, a Democrat from Tuscaloosa, said lawmakers may be able to provide a “temporary solution” through legislation, but that a long-term solution must address the 2018 constitutional amendment.
“That amendment is essentially a personhood amendment,” England said. “It's interesting that everybody keeps saying the decision was wrong, but the legislation doesn't address the decision.”
Advocates are concerned that IVF will become increasingly entangled in the debate over abortion.
Barbara Collura, President of RESOLVE: The National Infertility Association, said the nation is watching to see what happens in Alabama.
“This could potentially be a roadmap for other states to restrict IVF or a roadmap on how to protect IVF and family building," Collura said.
Dr. Michael C. Allemand, said the past 10 days had been the “hardest of my career" as he had tear-filled conversations with patients that “we might have to interrupt their journey."
“Everyone is crying. They're crying. I'm crying,” Allemand said. “I never anticipated that we wouldn’t be able to provide standard fertility care to our patients.”