The Alabama legislature on Wednesday is expected to pass legislation that would make it possible for fertility clinics in the state to reopen without the specter of damaging lawsuits.
But the measure, written quickly and expected to pass by a large bipartisan margin, does not address the legal question that led to the clinic’s closure and set off a stormy, politically charged national debate: Whether the embryos that frozen and stored for possible future planting. people have legal status.
The Alabama Supreme Court made such a finding last month, in the context of a lawsuit against a Mobile clinic brought by three couples whose frozen embryos were accidentally destroyed. The court ruled that, under Alabama law, those embryos must be considered human beings, and the couple is entitled to punitive damages for the wrongful death of a child.
Legal experts say the bill, which Governor Kay Ivey has signaled she will sign, would be the first in the nation to create a legal moat around embryos, barring lawsuits or prosecutions if those it is damaged or destroyed.
But although the proposal is likely to bring enormous relief to infertility patients whose treatments are suddenly suspended, it will do so in exchange for limiting their ability to sue when disasters occur with embryos. Such obstacles in a field of medicine with limited regulatory oversight could make the new law vulnerable to court challenges, experts said.
Here are the answers to some important questions:
What does the proposal do?
This creates two levels of legal immunity. If the embryos are damaged or destroyed, the direct providers of fertility services, including doctors and clinics, cannot be sued or sued.
Others who handle frozen embryos, including shippers, cryobanks and manufacturers of devices such as storage tanks, have more limited protections, but they are still important. Patients can sue them for damaged or destroyed embryos, but the only compensation they can receive is reimbursement for the costs associated with the affected IVF cycle.
Does the law benefit patients beyond making it possible for clinics to reopen?
This may have some benefits. The legal shield that protects fertility service providers also includes individuals “receiving services,” which appears to extend to patients undergoing IVF
Alabama patients will have a “cone around them as they go through IVF and how they treat their embryos,” including donating frozen embryos to medical research, discarding them or choosing not to implant to those with genetic anomalies, said Barbara Collurathe president of Resolve, a national group representing infertility patients.
That could be very significant given a recent state supreme court decision.
“Until now, no state has declared embryos as human. And the moment you declare them human, the more damage is done,” said Benjamin McMichael, an associate professor at the University of Alabama School of Law who specializes in health care and tort law. “So this is the first time we’ve needed a bill like this because we’ve always treated embryos as property.”
Does the proposal prevent a patient from suing a fertility provider for negligence?
The law does not address quotidian medical malpractice claims. If an infertility patient has a dangerous ectopic pregnancy because a doctor mistakenly implanted an embryo in her fallopian tube, she can still sue for negligence, Mr. McMichael said. But among her injuries, she said, she cannot claim the destroyed embryo.
“The bill does not establish liability or provide a vehicle for injured parties to hold other people accountable,” he said. “It just provides immunity.”
Other legal experts said the lines drawn by the legislature are subject to dispute. Judith Daar, dean of Northern Kentucky University’s Salmon P. Chase College of Law and an expert in reproductive law, offered the example of an embryologist who transferred or otherwise mishandled embryos.
“This bill says there is no recovery for patients for reproductive negligence,” he said. “I don’t think that was intended, but certainly the plain language of the statute would produce that kind of result.”
Until now, he said, patients have not always won such cases, “but here they don’t have the option to pursue a claim.”
The proposal is a physician protection bill, he added. “I’m not judging that but it doesn’t really address the patient’s needs and in fact seems to disenfranchise them,” he said.
To the extent that the threat of legal consequences can change behavior, he said, “this bill certainly gives providers more license to worry less about being prudent, because there is no liability at stake.”
The wrongful death cases that led to the Alabama Supreme Court’s decision are now moot?
No, those cases can continue. The new law exempts any embryo-related cases currently pending. If, however, patients have not filed a claim based on the destruction of their embryos, they will be prohibited from bringing it when the bill is enacted.
Does this law do anything to resolve the character controversy?
Nope. This completely avoids the question of whether a frozen embryo is a person. That decision, at least in the context of a wrongful death claim, still stands in Alabama. Instead of dealing with the issue, which has sparked a political firestorm across the country, lawmakers are “trying to thread the needle on the liability side of it and come up with some very complicated and counterintuitive measures,” said Mrs. there
said Ms. Resolve’s proposal solves an immediate problem but neglects the larger issue. “The status of embryos in Alabama is that they are human beings. But what is the mechanism to allow clinics to open and for patients to get care?” he says. “Is this the best way? Nope. Will it open clinics? Yes. Does it create other unintended consequences? Yes.”
Emily Cochrane contributed reporting.