The passage of an Alabama bill that aims to protect in vitro fertilization should have been a win for advocates of the fertility procedure, but it has left some legal experts around the country concerned that the new law will do more harm than good.
Alabama Gov. Kay Ivey said the bill — which came after a state Supreme Court ruling in February deemed embryos legally children and left the state’s fertility clinics scrambling — was intended as a stopgap measure to reassure fertility clinics that had halted operations. But legal experts said the bill also carries the unintended consequence of preventing patients whose embryos are destroyed due to clinic negligence or product malfunction from suing for damages.
“It is a knee-jerk, simplistic response to a complex issue,” said Brendan Flaherty, a Minnesota personal injury lawyer who has represented IVF patients whose embryos were lost due to faulty equipment.
The new law protects fertility doctors and patients from criminal and civil liability, and shields providers of “goods used to facilitate the in vitro fertilization process” — like freezer manufacturers — from criminal liability. Those companies that make IVF supplies can still be sued in civil court, but damages are capped at “the price paid for the impacted in vitro cycle.”
The law notably sidesteps the legal issue of whether or not embryos are legally minor children.
“They’re saying the compensation for the loss of a human embryo and potentially your last chance to have children is the same as a fender bender,” Flaherty said. “Does that make sense to anybody?”
“Even if you think embryos should be just like any other property under the law, the law should allow a jury to decide what the property loss is — not the legislature,” he added.
Alabama’s Supreme Court decision stemmed from a case in which someone allegedly wandered into an unlocked embryo storage area in a hospital in Mobile and dropped several frozen embryos on the…
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