MONTGOMERY — Two Alabama in-vitro fertilization (IVF) patients asked a Mobile County Circuit Court Judge to declare a law giving immunity protections to IVF providers unconstitutional on Wednesday.
Governor Kay Ivey signed the bill into law on March 6 after sailing through the House and Senate in under two weeks under a national microscope from the media. The law was a reaction to a February 7-2 Alabama Supreme Court decision that parents of frozen embryos killed at an IVF clinic in Mobile when an intruder tampered with a freezer may proceed with a wrongful death lawsuit for alleged negligence. The Court based its decision to protect the unborn on Alabama's Sanctity of Life Amendment, which states "the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life."
The new law provides civil and criminal immunity to IVF clinics for death or damage to embryos. Clinics in Alabama stopped offering IVF services shortly after the Alabama Supreme Court's opinion was released in February. After the bill was signed into law, most clinics again offered IVF.
The plaintiffs in the lawsuit are Raymond Lee and Sarah Brackett, whose embryos were killed in the same incident as the case considered by the Alabama Supreme Court. However, their lawsuit is a new one and separate from the cases considered in the Alabama Supreme Court's decision in February.
"Bottom line: IVF healthcare professionals should bear liability for medical negligence under the Alabama Medical Liability Act just like all other healthcare professionals. IVF professionals have been monitoring claims and lawsuits concerning destruction and deaths of frozen embryos for years. Unfortunately, claims such as those advanced by the Bracketts in this case (and the plaintiffs in the LePage/Fonde/Burdick‐Aysennes v. CRM/MIMC case) are nothing new. Medical mistakes happen. People suffer grievously when they do," David Wirtes, Jr., an attorney representing the Bracketts, said in the lawsuit filed on Wednesday. "Our legislature should not have rushed to judgment and conferred blanket civil or criminal immunity. It is now incumbent upon this Court to declare that the legislature's misguided efforts in promulgating §§ 6‐5‐810 and 6‐5‐811 are due to be corrected with a declaration that those statutes are unconstitutional."
2025-05-08 Motion to Declare IVF Immunity Statutes Unconstitutional by Caleb Taylor on Scribd
Wirtes said in the filing the new law violates "the Alabama Constitution's Declaration of Rights which enshrines unborn children with rights protected inviolate including the right to life, the right to Due Process, the right to a trial by jury, the right to a remedy, and the right to equal protection of Alabama law."
"Because those rights cannot be upset or impaired or taken away by the legislature or governor, Mr. and Mrs. Brackett must be permitted to proceed with their claims, including traditional wrongful death of a minor claims under § 6‐5 391 and the recovery of damages in the amount determined by the jury as necessary to punish and deter and thereby preserve the sanctity of human life," Wirtes stated. "Simply put, it will take another constitutional amendment to our Declaration of Rights before the legislature/governor could conceivably confer civil immunity upon IVF healthcare providers, deprive the Bracketts of their rights to rear children, deprive Brackett embryos A, B, and C of their rights to life, or deprive Plaintiffs of their remedies for their losses."
2024-05-08 Pltfs' Brief in Support of Motion to Declare IVF Immunity Statutes Unconstitutional by Caleb Taylor on Scribd
State Sen. Tim Melson (R-Florence), the bill’s sponsor, said he thought the law was on solid ground.
“It really doesn’t surprise me that it was filed but I think our resolution for it was on solid ground. If it’s upheld, I think we’ll probably be done addressing IVF. I think we’ll be alright,” Melson told 1819 News on Wednesday.
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