Last month, the Alabama Supreme Court issued a novel ruling in LePage v. Center for Reproductive Medicine, declaring that for the purposes of the state’s wrongful death statute, an unimplanted human embryo is legally considered a “child”. This interpretation permitted intended parents to sue their IVF clinic for wrongful death, rather than negligence, should their embryos be destroyed due to the clinic’s fault.
The ruling sparked controversy and concern, with IVF clinics in Alabama pausing treatments to reconsider the potential implications for their civil or criminal liabilities. Many in the reproductive rights community voiced concerns over the case, fearing it could lead to perceived ‘”deserts”‘ for IVF treatment, where access to these vital services would be as contentious and challenging as access to abortion is in certain regions.
However, the fears appeared to be quickly allayed. Subsequent to the LePage case, Alabama legislators moved swiftly to enact protective legislation for IVF services. In less than three weeks following the LePage ruling, Governor Kay Ivey signed into law SB159, a statute providing IVF clinics with broad protections against both civil and criminal prosecution. This allowed Alabama’s IVF clinics to resume their procedures.
Despite the swift reaction by Alabama lawmakers, some believe the new law might have its own drawbacks, largely due to the speed at which it was enacted. Its broad immunity provisions could potentially leave couples without legal recourse in cases of damage or destruction of their IVF embryos.
One critic, Ellen Trachman, a legal expert in assisted reproductive technology, comments that, “The swift action by the Alabama legislature to get IVF clinics open again was a good thing, but it may have gone too far.” Other critics argue that a simple fix to exclude IVF embryos from the definition of “child” under the wrongful death statute may have been more appropriate.
However, it’s important to note that SB159 was intended as a temporary measure to allow IVF clinics to resume services immediately – a goal it certainly achieved despite its potential drawbacks.
This series of events amidst controversy surrounding the LePage case serves as a reminder of the role of each branch of our democratic system. The judiciary interpreted and applied the law, the legislative and executive bodies responded to public concern, and enacted law to address it. It highlights how the law can and should be responsive to the needs and concerns of the people it serves, a principle that forms the core of our democratic process.