MONTGOMERY — Legislation will be filed soon to respond to a ruling by the Alabama Supreme Court last week that an embryo created through in-vitro fertilization (IVF) is a child. 

In a case originating from Mobile, LePage v. Mobile Infirmary Clinic, Inc., the Supreme Court held in a 7-2 decision on Friday that parents of frozen embryos killed at an IVF clinic when an intruder tampered with an IVF freezer may proceed with a wrongful death lawsuit against the clinic for alleged negligence. 

The University of Alabama at Birmingham responded to the ruling by announcing on Wednesday the UAB Division of Reproductive Endocrinology and Infertility has paused IVF treatments "as it evaluates the Alabama Supreme Court's decision that a cryopreserved embryo is a human being."

Eric Johnston, president of the Alabama Pro-Life Coalition and author of Alabama’s 2019 abortion ban law, told 1819 News in an interview on Thursday a bill or constitutional amendment would likely be filed in response to the ruling.

“There is a bill that was drafted, but we asked them to hold up on it to let us try to get an understanding or agreement among all affected parties as to what it ought to have. It has to be just right because the court opinion creates a dilemma. When you think about what a dilemma means, you know it just means there’s no good answer to it. I think the legislature has got to act and the reason they do is the IVF clinics don’t want to operate right now because they’re afraid if they did they’d get sued by plaintiff’s lawyers looking for judgements for disposing of frozen embryos. I mean, they’ve got to do something about it. It’s a conflict that’s created in the law,” Johnston said. “Exactly what that’s got to be is going to be the challenge because you’ve got a variety of opinion even among pro-life people as to whether the fertilized embryo that’s been frozen and stored in a cryo nursery or whatever they call it, some of the people think that’s okay, other people think it’s not. Then you’ve got the medical interests in that, which I think there are five clinics in Alabama, and it’s a proper medical procedure, it’s helped a lot of people to have children that couldn’t have children, but it’s unregulated basically. It’s certainly not regulated in Alabama. So how do you synchronize all the interests so that everyone is at least satisfied that you’ve done the best you’ve could. That’s the challenge right now.” 

A spokesperson for the Medical Association of the State of Alabama (MASA) said the group had “concern over the recent Alabama Supreme Court decision regarding the legal status of embryos, as it relates to In-Vitro Fertilization (IVF) procedures that may result in a woman becoming pregnant.”

“The significance of this decision impacts all Alabamians and will likely lead to fewer babies—children, grandchildren, nieces, nephews, and cousins—as fertility options become limited for those who want to have a family,” the MASA spokesperson said in a statement on Wednesday. “In addition, the ruling has already forced UAB, the largest healthcare system in the State of Alabama, to stop providing IVF services to Alabama couples. Others will likely do the same, leaving little to no alternatives for reproductive assistance. IVF is oftentimes the only option for couples wanting to conceive. In closing, we ask that the Alabama Supreme Court stay or revisit their ruling to ensure continued access to IVF care in Alabama.”

Johnston said he wasn’t sure yet whether the change would be a bill or constitutional amendment.

“I don’t know if you can do it by mere statute, but that’s the issue that we’ve got to get around. You’d have to amend the Alabama Constitution basically to say, in that one provision about unborn children say, ‘unborn children, except IVF children, are protected by all the laws’ and so forth. But if you look at the language in the Constitution, it says something about they’re protected under all laws lawful and appropriate. Does that say the Legislature can then make adjustments? There’s some pretty serious questions that we’ve got to figure out. We’re going to work, the pro-life community, we’ll work with the Medical Association, and they’ll kind of be leading the way with the in vitro people and try to come up with a consensus on how to do it. Part of it is going to have to be that there’s some regulation of the IVF clinics so you don’t have storage of unneeded, frozen embryos that at some point you’ve got to destroy,” Johnston said. “We’re just going to have to figure out those little details. I think everybody will work together. I’m optimistic everybody will work together and get it done. I think everyone will want to get it done in a way that there’s not more problems in the future from it.”

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