Alabama lawmakers scramble to protect IVF after ruling, while AG’s office says it has ‘no intention’ of prosecuting families

By Jason Hanna, Meg Tirrell and Dianne Gallagher, CNN

(CNN) — Fallout continues after the Alabama Supreme Court’s ruling last week that frozen embryos are children – an unprecedented decision that critics say could have a chilling effect on access to IVF treatments in the state.

Here are the latest developments:

Legislation to protect in vitro fertilization treatments in Alabama following the court’s ruling is necessary despite the state attorney general’s indication that he has no intention to use the ruling to prosecute IVF participants or providers, a state lawmaker told CNN Friday.

Alabama House Minority Leader Anthony Daniels, a Democrat, this week introduced a bill that would establish that fertilized human eggs stored outside a uterus are not considered human beings under state law. Republican state senators are soon expected to file similar legislation, a source told CNN, but the timing wasn’t clear.

The lawmakers’ efforts come as medical experts and critics fear the court’s first-of-its-kind decision – which can put those who discard unwanted embryos at risk of being held liable for wrongful death – could have a profound effect on fertility treatment operations in the state and devastating ramifications for people hoping to build their families through IVF.

Daniels’ proposal aims to “eliminate the lawsuits … that doctors across the state in IVF clinics are fearful of right now,” he told CNN’s Brianna Keilar on Friday.

“While the (Alabama) attorney general may have mentioned that he’s not looking for prosecution, who is to say a (district attorney) or any other law enforcement official doesn’t take this on?” Daniels said. “That’s why it’s important that as lawmakers, we focus on solving the problem immediately.”

Alabama AG has ‘no intention’ of prosecuting IVF families

Alabama Attorney General Steve Marshall “has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” his chief counsel, Katherine Robertson, said in a release Friday.

Marshall’s statement comes a week after the state Supreme Court ruled embryos – whether they’re within or out of a uterus – are children and would be protected under Alabama’s Wrongful Death of a Minor Act, which allows parents to sue for punitive damages when their child dies.

At least 3 providers halt some IVF programs

Already, at least three fertility treatment facilities in Alabama have halted certain IVF treatment programs amid concerns their medical personnel could be at legal risk.

The ruling “has sadly left us with no choice but to pause IVF treatments for patients,” the Center for Reproductive Medicine at Mobile Infirmary said Thursday, noting it will halt treatments on Saturday “to prepare embryos for transfer.”

Also Thursday, Alabama Fertility’s Birmingham clinic said it had “paused transfers of embryos for at least a day or two.”

And the University of Alabama at Birmingham health system said Wednesday it was halting IVF treatment due to legal concerns for its patients and doctors.

IVF patients consider commuting out of state

Gabrielle Goidel was days from having her eggs retrieved when her Alabama clinic said it would still perform the procedure but couldn’t guarantee being able to make, store or ship embryos, she told CNN.

“It was absolutely my worst fear,” Goidel told CNN this week as she and her husband were planning a last-minute trip to Texas in hopes of having the procedure done there.

The couple plan to travel between their home in Alabama and Texas, where they have family, so they can get the reproductive care they need, Goidel said, noting the travel costs would be significant.

Kelly Belmont, who has also been undergoing IVF treatment in Alabama, said the court’s ruling has been “consuming my life completely.”

“We’ve already invested so much time and money and just physical and emotional anguish into this process, and to think that it could have all been for nothing and that we could be ending our journey to be able to have children – it’s absolutely terrifying,” Belmont told CNN.

Belmont’s fertility clinic is continuing all treatments for now, she said, but she and her husband are fearful that may change.

Critics fear ruling may force parents to pay for lifelong embryo storage

Medical experts and critics have expressed concern the ruling could have widespread consequences for those providing or seeking fertility treatments in Alabama – and warn it may soon have profound impacts elsewhere in the country.

They say it could send liability costs skyrocketing, making fertility treatment prices prohibitive for many families; it could discourage medical providers from performing infertility treatments in fear of being held liable each time an embryo does not turn into a successful pregnancy; and it could mean parents will now be forced to pay for lifelong storage fees of embryos they will never be allowed to discard, even if they don’t want any more children.

Critics of the ruling also worry it has created a roadmap for groups and legislators across the country who may wish to target fertility treatments.

The US Supreme Court is unlikely to review the Alabama ruling because it doesn’t include an interpretation of the US Constitution or federal law, CNN Supreme Court analyst and professor at the University of Texas School of Law Steve Vladeck said.

How we got here

The Alabama ruling stems from two lawsuits filed by three sets of parents who underwent IVF procedures to have babies and then opted to have the remaining embryos frozen.

The court said embryos – whether they’re within or out of a uterus – are children and would be protected under Alabama’s Wrongful Death of a Minor Act.

The court in its majority opinion nodded to a 2018 amendment to the Alabama constitution which provides protections for “the rights of the unborn child,” including the right to life.

The Medical Association of the State of Alabama, which weighed in before the court’s decision, warned the ruling would create an “enormous potential for civil liability” for fertility specialists, because embryos can be damaged or become unsuitable for pregnancy at any time during an IVF process, including when they are being thawed.

The decision could also mean people are unable to discard embryos if they no longer wish to use them, requiring them to be stored in perpetuity – even if one or both of the parents die, the association said.

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CNN’s Elizabeth Wolfe, Mallika Kallingal, Devan Cole, Isabel Rosales, Christina Maxouris, Meg Tirrell, Chris Youd, Maxime Tamsett, Abby Phillip, Paradise Afshar and Brian Rokus contributed to this report.