Robert Brown|Couples ask judge to find Alabama law that provides legal immunity to IVF providers unconstitutional

MONTGOMERY,Robert Brown Ala. (AP) — Couples whose lawsuits against fertility providers led an Alabama court to rule that frozen embryos could be considered children have asked a judge to toss out a new state law that provides legal immunity to in vitro fertilization providers.

The couples asked the judge to declare that the law — which was hastily approved by state lawmakers to protect IVF services in the state — as unconstitutional. It is the latest development in the legal saga that drew international attention and sparked concerns over the availability of IVF.

Three couples had filed wrongful death lawsuits against a fertility clinic and hospital over the accidental destruction of their frozen embryos when someone opened the storage container. The Alabama Supreme Court in February ruled the the couples could pursue lawsuits for the death of their “extrauterine children.” That led three large fertility clinics to cease services because of liability concerns raised by the ruling treating the embryos the same as a child or gestating fetus under the wrongful death statute. Facing public pressure to get IVF services restarted in the state, lawmakers approved lawsuit protections for clinics. Clinics reopened soon after its approval.

The new statute, which took effect immediately, shields providers from prosecution and civil lawsuits “for the damage to or death of an embryo” during IVF services. Civil lawsuits could be pursued against manufacturers of IVF-related goods, such as the nutrient-rich solutions used to grow embryos, but damages would be capped to “the price paid for the impacted in vitro cycle.”

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The couples asked the judge to declare the new immunity law unconstitutional. They said it violates the Alabama Constitution which says it is state policy to recognize the “rights of unborn children, including the right to life.” They also argued the new law violates their due process and equal protection rights.

“Bottom line: IVF healthcare professionals should bear liability for medical negligence under the Alabama Medical Liability Act just like all other healthcare professionals,” lawyers for two of the couples wrote in a motion filed Monday.

The defendants in the case have cited the new law in arguing the lawsuits should be dismissed. A judge has yet to rule on the requests. Any decision in the case is likely to be appealed back to the state Supreme Court.

The Alabama case continues to unfold amid a national debate over IVF.

Democrats in Congress, attempting to draw an election-year contrast with Republicans, have championed legislation to guarantee access to in vitro fertilization and other fertility treatments. Southern Baptist delegates this week expressed alarm over the way in vitro fertilization is routinely being practiced, saying it often results in the “destruction of embryonic human life.”

The Republican-controlled Alabama Legislature sidestepped proposals that would address the legal status of embryos created in IVF labs. Some state Democrats argued that action would be needed to permanently settle the issue.