by Alander Rocha and Jenna Stephenson, Alabama Reflector
February 29, 2024

The Alabama Legislature Thursday approved bills to extend criminal and civil immunity to in vitro fertilization (IVF) providers, trying to address the fallout of an Alabama Supreme Court decision that declared frozen embryos children.

HB 237, sponsored by Rep. Terri Collins, R-Decatur, passed the House on a 94-6 vote late Thursday morning. The Senate passed SB 159, sponsored by Sen. Tim Melson, R-Florence, on a 34-0 vote.

Both bills passed after hours of debate in both chambers. Republicans and Democrats in the House both expressed concerns over unintended consequences. Democrats in both chambers questioned if it would be enough to protect IVF in the state, and accused Republicans of pursuing anti-abortion policies — including a 2018 “Sanctity of Life” amendment and a 2019 abortion ban — that led to the court’s decision.

Senate Minority Leader Bobby Singleton, D-Greensboro, said the IVF conundrum was an “I told you so” moment.

“You’ve just got to eat this one up,” he said. “You cause this problem and you’re going have to deal with this problem. Women all over the state should be pointing their fingers at you. You made this bed. And now you’ve got to sleep in it.”

Collins and Melson both described their bills as a temporary fixes aimed at reopening IVF programs and said a long-term solution would be needed. Collins, who sponsored the 2019 abortion ban, discussed the possibility of a task force to develop that longer-term solution.

“We’re going to continue to need to work together to fix the problem, but right now we were wanting to get the clinics open for the families to be using them, and this that does,” Collins said.

The state Supreme Court on Feb. 16 ruled that frozen embryos destroyed at a Mobile clinic could be considered children, and that their parents could pursue civil damages under an 1872 state law. Many IVF programs in the state, including one at the University of Alabama Birmingham, stopped offering the service, citing concerns about legal consequences for patients and providers.

The decision has drawn criticism from around the nation. Hundreds of people who have used or administered IVF came to the Alabama Statehouse on Wednesday to urge action on the issue.

Alabama lawmakers have been racing to try to develop a solution. But supporters also had questions about the legislation.

Rep. Chris England, D-Tuscaloosa, speaks during a debate on a bill aimed at preserving in vitro fertilization services in Alabama in the Alabama House of Representatives at the Alabama Statehouse in Montgomery, Alabama on Feb. 29, 2024. The House approved a bill providing criminal and civil immunity to IVF providers, following an Alabama Supreme Court ruling that caused many programs to close their doors. (Brian Lyman/Alabama Reflector)

Democrats said the court decision rested on when life begins, and noted the bill does not address that question.  Some also expressed concern about extending blanket criminal and civil immunity to both providers and patients, saying that it does not protect patients from malpractice.

Rep. Chris England, D-Tuscaloosa, said that giving blanket immunity is “requiring [the Legislature] to be morally ambiguous and intellectually dishonest.” 

England said that the bill avoided addressing the court’s finding, based in part on a 2018 “Sanctity of Life” constitutional amendment, that a frozen embryo is an unborn child. He accused the legislative majority of  trying to avoid a lawsuit over any legislation that could contradict the court’s finding.

“If in fact, we have a constitutional amendment that requires us to adopt public policy that these embryos have a right to life, can we pass a law that authorizes life to be taken in fertility clinics?” he said.

Many Republicans speaking against the bill wanted more restrictions on IVF treatments, such as having a process for dealing with embryos once households achieve their family goals, arguing that a frozen embryo represents a life.

Rep. Ernie Yarbrough, R-Trinity, who voted against the bill, said that the ruling and the attention it has gotten had possibly “uncovered a silent Holocaust going on in our state.”

Yarbrough said that lawmakers should take the time to work out legislation that prevents “the destruction of children” they weren’t aware of.

“It’s a self-imposed pause the IVF facilities in this state have put on themselves must continue until we’ve determined what is moral and righteous and life preserving,” Yarbrough said. “Is this not worth the pause?”

He offered an amendment to add that immunity shall not be provided to those who intentionally causes the destruction of an embryo. The amendment was tabled, with Democratic House members voting with Yarbrough.

‘A tough situation’ Sen. Tim Melson, R-Florence, listens during a debate in the Alabama Senate on a bill extending immunity to in vitro fertilization programs on Feb. 29, 2024 at the Alabama Statehouse in Montgomery, Alabama. The Alabama House and Senate both debated measures aimed at restarting IVF programs in the state, after a Feb. 16 Alabama Supreme Court decision led many to shut down. (Brian Lyman/Alabama Reflector)

The question of when life starts also entered a debate in the Alabama Senate over a similar bill sponsored by Sen. Tim Melson, R-Florence. Melson circulated a draft bill last week that would have excluded fertilized eggs or embryos not implanted in a womb from a definition of life, but dropped that language in the measure filed this week. Melson said before the Senate convened Thursday that he didn’t “take a poll” on what the Republican caucus preferred, but also didn’t want to make anyone uncomfortable by having to take a position on the issue.

“It just seemed like it would be one thing that’ll put them in, like I say, just a tough situation to make that determination with the short period of time,” he said. 

Senate Minority Leader Bobby Singleton, D-Greensboro, gestures during an Alabama Senate debate over a bill extending immunity to in vitro fertilization providers on Feb. 29, 2024 at the Alabama Statehouse in Montgomery, Alabama. The House and Senate Thursday both considered measures aimed at restarting IVF programs that stopped following a Feb. 16 Alabama Supreme Court ruling. (Brian Lyman/Alabama Reflector)

While the question of when life begins was central to the Supreme Court’s ruling, Melson said that they didn’t think it was necessary to state when life begins for IVF and thinks it might survive judicial scrutiny.

Rep. Juandalynn Givan, D-Birmingham, said that she was concerned with patient rights in the event of malpractice. She argued that Alabama claims to be a pro-life state, but they aren’t looking after the lives of patients. She said that there is “something seriously wrong with this piece of legislation” and that urgency of passing the legislation leads to death.

“You are now saying that the mother who may have had to have an IVF procedure, the doctor has committed some act, using a best practice, and he’s immune to prosecution. That’s not right,” she said.

Melson, speaking in the Senate, said he believed legal action would still be possible in those situations.

“They’re still going to be susceptible to, I’ll just call it malpractice,” he said during that chamber’s debate.

Rep. Anthony Daniels, D-Huntsville, has introduced a constitutional amendment that would declare that a fertilized embryo is not a child.

Daniels said that he doesn’t know how the Supreme Court will look at the current piece of legislation.

“We certainly got to have realistic conversation and not continue to sidestep and work around the issue at hand. Because these families — this is their last best chance to be able to bring life into this world,” he said.

Sen. Linda Coleman-Madison, D-Birmingham, said the Legislature was not taking all the steps needed, and compared the situation to putting out a fire by throwing “a little water on it.”

“We look around and say ‘It’s out,'” she said. “We walk away, which is what’s going to happen today. But you got little embers that are still burning there. We walk on … we go home, we adjourn because this session is moving fast. And then they say ‘You know, we got a huge brush fire that’s out there because something happened and we didn’t get it right.’”

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.