Alabama’s attorney general won’t prosecute IVF clinics, families

MONTGOMERY: The Alabama Attorney General’s office had “no intention” of prosecuting providers of in vitro fertilization or families who use their services, it said on Friday after the state’s top court ruled that frozen embryos are considered children.

Following the Alabama Supreme Court ruling last week that allowed parents to sue for wrongful death of their minor children, including embryos, several of the state’s fertilization clinics halted their work on in vitro fertilization (IVF), which is the creation of embryos by mixing eggs and sperm in a lab dish.

“Attorney General (Steve) Marshall has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” Katherine Robertson, the chief counsel to Marshall, said in an emailed statement.

The ruling by Alabama’s top court, whose elected judges are all Republican, left doctors and patients wondering how to legally store, transport and use embryos, if they are to be held liable for any embryos that are destroyed or lost.

The court’s chief justice, Tom Parker, wrote in his concurring opinion that the court was simply following state laws, and that it was up to the state’s legislature to pass new measures that would regulate the IVF clinics and processes according to the state’s 2018 Sanctity of Life Amendment approved by voters that supports “the sanctity of unborn life and the rights of unborn children.”

Alabama state Senator Tim Melson, a doctor and a Republican, told local media on Thursday that he was going to file legislation that would protect the IVF industry and families who use it. The earliest Melson’s bill can be filed will be on Tuesday when the Senate is next in session, according to the state’s Legislative Services Agency.

House Minority Leader Anthony Daniels, a Democrat, filed a bill on Thursday that states “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law.”

Health advocates say by enshrining the idea of “fetal personhood,” the Alabama Supreme Court ruling could inspire further restrictions on women’s reproductive freedom around the U.S.

In 2022 the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade ruling that recognized the constitutional right to an abortion. That left it up to states to determine legality within their borders. Conservative states, such as Alabama, have since imposed near total bans on abortion procedures.

Republicans on Friday sought to stem the fallout over the Alabama court ruling. President Joe Biden, a Democrat seeking re-election this fall, said on Thursday said that the ruling showed “outrageous and unacceptable” disregard for personal choice.

The Alabama case was brought by three couples seeking damages from a center storing their frozen embryos after a patient accessed and destroyed them.

The high court ruled that Alabama’s constitution clearly considered embryos “unborn children ... without exception based on developmental stage, physical location, or any other ancillary characteristics,” citing a constitutional amendment that Alabama voters approved in 2018 which granted fetuses full human rights, including the right to life.

IVF treatment typically involves creating multiple embryos to maximize the chance of a successful pregnancy, leaving some unused.