Plaintiffs in a wrongful death in vitro fertilization (IVF) lawsuit that has received national attention in recent months asked the Mobile County Circuit Court to declare a new Alabama IVF provider immunity law unconstitutional this week.

In the case originating from Mobile, LePage v. Mobile Infirmary Clinic, Inc., the Supreme Court held in a 7-2 decision in February 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 Alabama Legislature quickly passed legislation in response to the Alabama Supreme Court’s ruling. 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 new law provides civil and criminal immunity to IVF clinics for death or damage to embryos. The law states it doesn't apply retroactively to ongoing litigation on the date the bill was signed into law. After the Supreme Court ruling, the case was sent back to Mobile County Circuit Court. After the legislature passed the new provider immunity law, attorneys for the Mobile Infirmary Association and the Center for Reproductive Medicine filed a motion to dismiss the case in May.

mobilecocircuitcourt by Caleb Taylor on Scribd

The plaintiffs in the case asked the court to declare the new provider immunity law unconstitutional this week.

“Dr. and Mrs. LePage and Mr. & Mrs. Fonde contend this Court has the authority – and the duty – to declare the statutes unconstitutional because they are violative of Plaintiffs’ fundamental rights, including the right to life, the right to raise and rear children, the right to equal protection of Alabama law, the right to trial by jury under Art, I, § 11 of the Alabama Constitution, the right to a remedy under Art. I, § 13 of the Alabama Constitution, and the right to protect Plaintiffs’ claims from retroactive legislation under Art. IV, § 95 of the Constitution,” David Wirtes Jr., an attorney representing the plaintiffs, said in a filing on Monday.

Wirtes continued, “The hastily conceived in vitro fertilization civil and criminal immunity statutes violate several provisions of the Alabama Constitution, cannot be sustained or saved under any theory of law and thus must be declared unconstitutional and null and void and of no legal effect.”

mobilecocircuitcourt2 by Caleb Taylor on Scribd

The constitutionality of the new IVF immunity law is also being challenged in a new, different case.

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