The Alabama Legislature on Wednesday is expected to pass legislation that would allow fertility clinics in the state to reopen without the specter of FGM.
But the measure, written in haste and expected to pass by a huge bipartisan margin, does not address the legal issue that has led to clinic closures and sparked a stormy, politically charged national debate: whether embryos that have been frozen and stored for possible future implantation have the legal status of man.
The Alabama Supreme Court made such a finding last month in a lawsuit against a Mobile clinic brought by three couples whose frozen embryos were inadvertently destroyed. The court ruled that, under Alabama law, these fetuses must be considered human and that the couples are entitled to punitive damages for the wrongful death of a child.
Legal experts said the bill, which Gov. Kay Ive has signaled she will sign, would be the first in the country to create a legal moat around embryos, preventing lawsuits or prosecutions if they are damaged or destroyed.
But while the measure is likely to provide huge relief to infertility patients whose treatments were abruptly suspended, it will do so at the cost of limiting their ability to sue when accidents happen to fetuses. Such restrictions in an area of medicine with limited regulatory oversight could make the new law vulnerable to legal challenges, experts said.
Here are answers to some basic questions:
What does the meter do?
It 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 prosecuted.
Others who handle frozen embryos, including shippers, cryobanks and manufacturers of devices such as storage tanks, have more limited protections, but these are still important. Patients can sue them for damaged or destroyed embryos, but the only compensation they can get is a refund of expenses related to the affected IVF cycle.
Does the law benefit patients beyond allowing clinics to reopen?
It may have some benefits. The legal shield protecting fertility service providers also includes people “receiving services,” which appears to extend to IVF patients
Alabama patients will have “a cone around them as they go through IVF and how their embryos are treated,” including donating frozen embryos to medical research, discarding them or choosing not to implant with those that have genetic abnormalities, said the Barbara Collura, president. of Resolve, a national group representing infertility patients.
This may be extremely important given the state’s highest court’s recent decision.
“Until now, no state has declared that fetuses are human beings. And once you declare them human, a lot more damages become available,” said Benjamin McMichael, an associate professor at the University of Alabama School of Law who specializes in health care and tort law. “Well, this is the first time we’ve ever needed a bill like this because we’ve always treated embryos as property at most.”
Does the measure prevent a patient from suing a fertility provider for negligence?
The statute does not address everyday medical malpractice claims. If an infertility patient has a dangerous ectopic pregnancy because a doctor accidentally implanted an embryo in her fallopian tube, she can still sue for negligence, Mr. McMichael said. But among her damages, she said, she cannot claim the damaged fetus.
“The bill doesn’t fix liability or give injured people a vehicle to hold other people accountable,” he said. “It only provides immunity.”
Other legal experts said the lines drawn by the legislature are open to dispute. Judith Daar, the dean of Northern Kentucky’s Salmon P. Chase University College of Law and an expert on reproductive law, gave the example of an embryologist who alters or mishandles embryos.
“This bill says there is no recovery for reproductive malpractice patients,” she said. “I don’t think that was intended, but certainly the plain language of the statute would have that effect.”
Until now, he said, patients have not always won such cases, “but here they don’t even have the option to pursue a claim.”
The measure is largely a bill to protect doctors, he added. “I’m not judging this, but it doesn’t really meet the needs of patients and actually seems to disenfranchise them,” he said.
To the extent that the threat of legal consequences can modify behavior, he said, “this bill certainly gives providers more permission to worry less about being careful because there’s no liability at stake.”
Are the wrongful death cases that led to the Alabama Supreme Court decision now moot?
No, these cases can proceed. The new legislation exempts any fetus-related lawsuits currently pending. If, however, patients have not yet filed a claim based on the destruction of their embryos, they are barred from filing one once the bill takes effect.
Does this law do anything to resolve the personality dispute?
No. It completely sidesteps 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 addressing the issue, which has sparked a political firestorm across the country, lawmakers are “trying to thread the needle on the liability side and come up with some very complicated and contradictory measures,” Ms. Daar said.
Resolve’s Ms Collura said the proposal solves an immediate problem but leaves the wider issue hanging. “The status of fetuses in Alabama is that they are individuals. But what is the mechanism that allows clinics to open and patients to receive care?’ he said. “Is this the best way? No. Will he open clinics? Yes. Does it create other unwanted effects? Yes.”
Emily Cochran contributed to the report.
