IVF Provider Immunity in Alabama: A Challenge to National Conservative Unity on Pro-life Issues

Since certain Republican presidential candidates have recently distanced themselves from, or outright rejected, pro-life state supreme court decisions in Arizona, Florida, and Alabama, while praising counter-legislation such as that examined here, a closer look at that legislation’s content and actual scope seems worthwhile. Political calculations about toning down the conservative party’s pro-life identity to win elections are being touted at the moment. But if sacrifices or concessions are to be made, one must at least know what is being given up and what is being gained.

The new Alabama Act SB159 grants IVF providers civil and criminal immunity for any “death or damage to an embryo.” This partially reverses the recent Alabama Supreme Court decision that recognized extrauterine human embryos as children and granted tort remedies for their destruction. The new law, and the astounding events surrounding its passage, were the product of intense propaganda and political pressure from the political Left and the artificial reproduction industry to exploit election-year politics, attack yet another pro-life court judgment, and successfully divide Republicans.

The act partially reverses the holding in LePage, Fonde & Aysenne v. Center for Reproductive Medicine & Mobile Infirmary Association, in which the Alabama Supreme Court held that Alabama’s Wrongful Death of a Minor Act allows parents of a deceased child to recover punitive damages for the death of extrauterine human embryos created in vitro. The case concludes that IVF embryos are included in the term “minor child” under the statute. 

In this case, the embryos of three married couples—the LePages, the Fondes, and the Aysennes—were destroyed in a bizarre incident at an IVF clinic. A patient entered the clinic’s frozen embryo bank, without authorization or supervision, to remove some embryos (probably their own) and accidentally destroyed the plaintiffs’ five embryos in the process.

As noted by Justice Jay Mitchell, who wrote the majority opinion, all parties to the litigation, including the Center for Reproductive Medicine and the Mobile Infirmary Medical Center, agreed that “an unborn child is a genetically unique human whose life begins at fertilization,” and that an unborn child qualifies as a “human life,” “human being,” or “person” throughout all stages of development regardless of viability. The clinics disagreed, however, arguing that an extrauterine human embryo, who is not physically located in utero, would not be a “child” or “person” and, therefore, would not be within the class of persons protected by the Wrongful Death Act. In contrast, the Alabama Supreme Court found that the physical location of the human embryo, like any other ancillary characteristics, did not exclude him from the act’s protection.

The LePage judgment recognized some measure of accountability against IVF providers that, by wrongful act, negligence, or omission cause the destruction of human embryos. It allowed a private cause of action to parents for money damages for the loss or destruction of their own human embryos in an IVF clinic. The ruling did not prohibit any artificial reproduction procedures or impose any penalties on IVF providers in Alabama. The plaintiffs themselves stated that they had conceived healthy children through IVF before and “did not intend to hinder or impair” access to IVF treatment.

The seed for the distortion of the holding’s scope, and of the subsequent rejection of the ruling, seems to have been planted by Justice Greg Cook, who wrote the sole opinion that dissented in full, siding with the IVF providers in the lawsuit. Despite affirming his agreement that life begins at conception, Justice Cook rejected the idea that the extrauterine human embryo could be included in the legal definition of the terms “child,” “person,” and “minor” under Alabama law. He also referred to the plaintiffs’ deceased embryos as “frozen embryos,” a term suggesting a non-living status for the cryopreserved embryo. This term was later used as the only designation for the deceased embryos by most of the press.

Judge Cook’s dissent directly addressed the Alabama legislature, repeatedly calling it to adopt legislation that would reverse the judgment. The dissent echoed the defendants’ threat that the recognition of “frozen embryos” as children would “almost certainly end the creation of frozen embryos” in the state of Alabama, “lead to fewer newborn babies,” and end “this medical procedure,” creating a “huge impact on many Alabamians.”

In its amicus brief siding with the defendant clinics in the litigation, the Medical Association of the State of Alabama threatened to raise IVF costs to a prohibitive level and make the procedure less affordable to prospective parents by IVF. Apparently speaking for IVF providers in the state, the Alabama Medical Association argued that providers would be held liable for routine treatment of ectopic pregnancies, a proposition that the LePage majority categorically rejected. The association made blanket assertions that treating extrauterine human embryos as children for the purposes of wrongful death liability would “substantially increase the cost of IVF in Alabama,” would “make cryogenic preservation onerous,” and that “costs and storage issues would be prohibitive;” but it presented no evidence whatsoever to that effect. National Review columnist Ed Whelan called such unproven claims a “massive bluff” on the part of IVF providers.

As soon as the ruling was issued, Alabama IVF providers, including unlikely institutions such as the University of Alabama at Birmingham, voluntarily suspended their IVF services. They blamed the Alabama Supreme Court decision in LePage, which did not remotely suggest such action. Providers and Democratic politicians also blamed the Dobbs decision, which had no relation whatsoever to IVF access, as correctly pointed out by Ed Whelan.

The Associated Press reported that IVF providers “traveled to Montgomery to urge lawmakers to find a solution,” promising to resume their activities as soon as the state legislature passed a law reversing the ruling. In the mainstream press, Alabama providers who admittedly maintained low standards for extrauterine embryo care and preservation, claimed that they would be victimized by the LePage ruling and forced either to close down, or to increase the already high costs of their operations. The judgment would also harm thousands of individuals and couples who would lose access to biological parenthood, especially those identifying as LGBT, the progressive media claimed.

Hit pieces were published against Alabama Chief Justice Thomas Parker in leftist media such as NPR, the Washington Post, the Atlantic, and the New York Times. Even though he did not write the majority opinion, Justice Parker was targeted and subjected to ad hominem attacks against his person and his faith. Leftist journalists deplored his pro-life concurring opinion; they also took the opportunity to condemn his conservative stance on same-sex marriage and his legacy of pro-life decisions during his tenure as Chief Justice and as Supreme Court judge. That legacy includes Hamilton v. Scott II (2018) and Ex Parte Phillips (2012), which attacked Roe v. Wade and recognized the personhood of unborn children; it also includes Stinnett v. Kennedy (2016), in which he argued that unborn children are entitled to equal protection of the law under the constitutions of the United States and Alabama. Likewise, in Ex Parte Hicks, a 2014 judgment, he pointed out the logical fallacy of treating the unborn child as a distinct person in some respects and yet denying them full personhood in abortion cases, a principle that he applied in protecting the unborn child’s rights in chemical endangerment cases such as Ex Parte Ankrom and Kimbrough.

Justice Parker’s powerful concurrence in LePage made relevant references to multiple Christian theologians of various denominations to explain the meaning of the Sanctity of Unborn Life Amendment to the Alabama Constitution. His references to the Christian origins of the constitutional amendment were ridiculed with special viciousness and characterized as Christian nationalism by the leftist press, an idea that Ryan Anderson refuted in First Things.

Astonishingly, President Joe Biden used his State of the Union Address to specifically condemn the LePage ruling. He and U.S. Senator Chuck Schumer invited as guests to the event two female IVF users whose embryo transfers had been unilaterally canceled by their IVF providers. The women were presented as victims of the Alabama Supreme Court, rather than victims of their own IVF providers who unilaterally halted services and exerted unethical, undue pressure on their patients to protest the ruling on their behalf. As a result, in Alabama, parents who had conceived children by IVF unwittingly protested against parents’ rights to compensation for the wrongful death of their embryonic children and their right to render IVF clinics accountable for their destruction, perhaps without truthful knowledge of the court’s actual holding.

The majority Republican legislature yielded in less than fifteen days after the February 20 judgment. It approved the act and the Republican governor signed it into law on March 6, apparently intimidated by election year considerations, political pressure from the Left and mainstream media, and the Alabama IVF providers’ strike over the recognition of human embryos as children. The new law’s affirmative grant of civil and criminal immunity for IVF providers who fail to properly handle and preserve human embryos, however, does not benefit parents who use IVF or children conceived in it; it solely benefits the IVF industry, as pro-life leaders have pointed out. These leaders include people like Marjorie Dannenfelser of Susan B. Anthony Pro-Life America, along with representatives of the Southern Baptist Convention, March for Life Action, and Family Research Council, who urged the Alabama governor to veto the legislation.

The act gives IVF providers absolute legal immunity from any civil or criminal action against embryo tampering or destruction. It prevents parents from seeking any remedies other than limited reimbursement from some IVF equipment manufacturers and requires no minimum due care for the lives of human embryos. The act’s broad and imprecise language suggests that Alabama IVF providers are now free to damage, manipulate, dispose of, or otherwise destroy any human embryos, whether cryopreserved or in vivo, intentionally or negligently, with or without parental consent, and in complete impunity.

If unchallenged, the law would reverse the portion of the LePage decision that grants parents a right of action against IVF providers for the wrongful death of their own embryos. The act’s retroactivity provision, which applies to any actions or omissions resulting in embryonic death or damage before the passage of the law, would also preempt enforcement of the judgment by the three married couples who were plaintiffs in the lawsuit and foreclose their option of obtaining wrongful death remedies for the death of their embryonic children.

The act did not, however, explicitly overturn the decision in its entirety or adopt any provisions contrary to the finding that extrauterine human embryos created in vitro are children, whether cryopreserved or not. Alabama Supreme Court precedents holding that unborn children are “children” for the purposes of Alabama’s Wrongful Death of a Minor statute (e.g. Mack v. Carmack and Hamilton v. Scott) are not affected by this law, either.

Alabama, a pro-life state with a pro-life constitution that specifically recognizes the sanctity of unborn life and ensures “the protection of the rights of the unborn child in all manners and measures lawful and appropriate” (Art. I, §36.06) will continue to prevail over legislative acts such as SB159. Alabama’s fetal homicide statute, the Brody Act, will continue to outlaw the killing of an unborn child in utero, even in capital murder cases such as Ex parte Phillips. Under Boone v. Mullendore, Alabama will continue to reject “wrongful birth” actions because of its Sanctity of Unborn Life Amendment.

The passage of Act SB159, however, undermined an important pro-life state supreme court judgment, setting a negative precedent for the finality of other pro-life judgments and even pro-life legislation in general. Immediately after Act SB159’s passage, the IVF industry in Alabama, supported by Democrats, seized momentum and tried to destroy Alabama’s recognition of the unborn child’s personhood. Alabama House Democrats proposed legislation declaring that an extrauterine human embryo cannot be considered an unborn child or human being under state law, arguing that it was the most “direct way” to deal with the issue. Republicans reportedly prevented the proposal from being brought up for a vote.

Republican confusion about the actual holding in LePage led to unfortunate consequences for party unity on pro-life issues. Notably, former president Donald Trump released a video statement on abortion and IVF rejecting a hypothetical nationwide ban on abortion and condemning an IVF ban that the Alabama Supreme Court never ordered. In it, President Trump congratulated the Alabama legislature for acting “very quickly” in passing the IVF provider immunity law and doing a “really great and fast job,” stating he “strongly support[s] the availability of IVF for couples who are trying to have a precious baby,” apparently under the incorrect assumption that the Alabama judgment had somehow banned it. 

Curiously, such statements seem to heed President Biden’s call to Republicans in his State of the Union to support legislation that would “guarantee the right to IVF nationwide.” In addition to the presidential nominee, other Republicans seem to agree: U.S. Rep. Nancy Mace, for instance, proposed a nonbinding federal resolution treating IVF as a reproductive right, and U.S. Rep. Marc Molinaro co-sponsored one of three bills recognizing a legal right to IVF proposed by Democratic congresswomen.

Whether supporting the creation of a right to IVF will help Republicans win votes remains unclear; the next federal and state elections may give an inkling of it. In the meantime, conservatives can nevertheless choose not to react to every provocation that the Left throws their way, or to be sidelined by distracting debates and ideological traps that will force them to make concessions on pro-life or other critical political issues. In particular, as noted by policy analysts like Patrick T. Brown, conservative politicians need not side with the Left on IVF or support liberal agendas.

Conservative lawmakers can certainly agree that the IVF industry needs legal regulation. In LePage, both Chief Justice Parker and Justice Mendheim pointed out that legal scholars consider the United States a Wild West for reproductive technologies, which have gone largely unregulated since their inception in 1978. All justices, including Justice Cook, agreed on “the need for comprehensive regulation” of the IVF industry. In practice, that could mean, for instance, supporting legislation to substitute embryo freezing for gamete (ova or sperm) freezing; this is a more ethical alternative to mass embryonic cryopreservation, according to the Catholic University of Valencia’s Bioethics Observatory.

To expect the IVF industry to regulate itself or to curb its own destruction of embryos in any way seems especially unreasonable as a conservative position. The billion-dollar industry of artificial reproductive technologies creates and destroys more embryos than can possibly be implanted in human wombs, as IVF providers openly admitted in LePage and the publicity campaigns against it. Ordinary IVF processes in the United States today require not only surplus embryo creation but also embryo screening, selection, freezing, eventual disposal, and destruction or donation to embryo-destroying research. Providers’ economic interest in preserving the status quo includes an economic interest in allowing millions of human embryos to be created and destroyed by IVF providers for profit, with no legal consequences.

The new Alabama law can ironically be a good starting point for a consensus that conservatives should not promote broad immunity and impunity for embryo destruction, nor support the abolition of a parental right of action against IVF providers. The law’s passage is a proper illustration of why conservatives need a principled approach to defend rather than attack pro-life judgments, especially not without careful legal study. Conservatives can choose to coalesce around pro-life courts and support their rulings, to give them the benefit of the doubt rather than distance themselves from them. The Left certainly seems to have greater consensus on that strategy.

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