Sebastien Sabillon, Political Reporter
18 March, 2024
The passage of a bill in Alabama intended to protect in vitro fertilization (The process of taking an egg and sperm and combining the two in a lab) should have been a victory for supporters of the fertility procedure. However, it has sparked concerns among legal experts across the country, who fear that the new law may have unintended consequences.
Alabama Governor Kay Ivey explained that the bill, which followed a state Supreme Court ruling in February declaring embryos legally children, was meant to provide temporary relief to fertility clinics that had halted operations. Despite this intention, legal experts worry that the law could prevent patients from seeking damages in cases where their embryos are destroyed due to clinic negligence or product malfunction.
Brendan Flaherty, a personal injury lawyer from Minnesota, criticized the law as a simplistic response to a complex issue. He argued that it fails to address whether embryos are legally considered minor children and limits damages in cases of negligence or malfunction to the price of the impacted in vitro cycle, likening it to equating the loss of an embryo to a minor property damage incident.
The new law offers protections to fertility doctors and patients from criminal and civil liability. It also shields providers of goods used in the in vitro fertilization process, such as freezer manufacturers, from criminal liability. However, companies that manufacture IVF supplies can still be sued in civil court, although damages are capped.
The Alabama Supreme Court’s decision that led to the bill stemmed from a case where frozen embryos were dropped on the floor due to an unlocked storage area in a hospital. The court considered the embryos human beings under the state’s wrongful death statute. This incident, though shocking, is not uncommon in the fertility industry, where mishaps can occur during storage or due to defective equipment.
Despite the significant emotional and financial toll of IVF, which can cost up to $20,000 per cycle, there is a lack of federal or state oversight in the fertility industry. This lack of regulation, combined with the industry’s multibillion-dollar nature, has led to concerns about accountability and access to justice when things go wrong.
Many legal experts and advocates argue that while embryos should be treated as unique and precious property, criminal penalties and strict liability for providers are not the solution to addressing accidents or negligence in the fertility industry. They stress the need for a balanced approach that considers the emotional and financial impact on families without overburdening providers with excessive liability.