The LePage case in Alabama deserved a wiser political response
“It is not good to have zeal without knowledge, nor to be hasty and miss the way,” the Bible advises. In the wake of a zealous (if often misinformed) tsunami of media coverage following a case in which the couples who used in vitro fertilization (IVF) actually won, the Alabama Legislature hastily passed legislation that may create more problems than it solves.
Few media outlets have highlighted the facts of LePage v. The Center for Reproductive Medicine, involving a hospital system that could not even bother to put IVF-facilitated embryos behind lock and key. Indeed, few stories even mentioned the name of the case itself, often preferring to lead with the “agonizing limbo” of delayed fertility treatments (which resulted from the decisions of fearful IVF clinics, not the courts) while ignoring the actual litigants who had embryos dropped on the floor by a wandering hospital patient.
The lawmakers of Alabama have responded by passing a bill eliminating any legal incentive to secure the door in the future. Senate Bill 159 was introduced on February 27 and quickly passed both chambers with overwhelming margins before being signed by Governor Kay Ivey on March 6. The new law states that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Thus, for couples like those before the Alabama Supreme Court financial compensation would be unattainable not only through the Wrongful Death of a Minor Act, upon which the recent decision centered, but also under any alternative theories like negligence or breach of contract, under which the couples also brought suit.
In sum: There was already little regulation of what Chief Justice Parker, in a solo concurrence, rightly calls the “Wild West” of Alabama IVF before. Now there is no sheriff in town at all.
The bill will not affect the recent litigants directly, as the Legislature did limit the new immunity statute’s effect to claims “which are not the subject of litigation on the effective date of this act.” That means the plaintiffs should be able to proceed with their particular cases. Others, though, who might have had potential claims but had not yet filed, faced a race to the courthouse door. With the statute written to “apply retroactively” and become effective “immediately,” all the normal timeframes for filing a lawsuit evaporated on the day the governor signed the bill into law.
From now on, unless the statute is later repealed or amended, those working in IVF will be immune from liability should they negligently destroy embryos. Given the sweeping nature of the legislative language, it appears they will even have legal immunity should they intentionally destroy embryos. Many IVF clinics may be tempted to do that given the ongoing problem of “abandoned” embryos. Legal uncertainties have helped to keep the freezers on, but under the cover of this new blanket immunity those plugs may well be pulled.
Much of the media is pointing fingers at the Dobbs decision as opening the door to LePage. Certainly there is a link, but the largely lawless world of IVF came to be under Roe, which fostered a hands-off regulatory approach in many jurisdictions regarding anything related to abortion. Lax or nonexistent oversight allowed Dr. Kermit Gosnell’s “house of horrors” to stay in business for decades. A related phenomenon has kept IVF clinics in a largely unregulated bubble.
Chief Justice Parker has been widely criticized for the “stunning” act of referencing the Bible and theology in his concurrence. (One can only assume that such stunned writers and editors have never read the likes of Abraham Lincoln or Martin Luther King, Jr.) Largely ignored is the fact that Parker also surveys the IVF standards in Australia, New Zealand, and Europe.
Also unnoticed is the extent to which Parker’s observations sound like many pre-Dobbs reports from mainstream news organizations. For example, NBC News in 2019 highlighted an IVF doctor who concluded that “there needs to be more regulation, in part to put limits on the number of embryos created by a couple.” The same expert noted that “clinics are fertilizing too many eggs.” NBC further summarized the expert’s views: “Regulation is needed within the fertility industry and [she was] hopeful the U.S. [would] follow examples established by Germany and Italy, where only a few embryos can legally be created and transferred at a time, thus avoiding surplus embryos.”
Unlike Chief Justice Parker, doctors were not pilloried in this segment for raising ethical concerns. NBC quoted an IVF practitioner as saying, “The American Society for Reproductive Medicine, the main guiding society for fertility doctors, has put out numerous papers indicating embryos are deserving of respect.” Are Parker’s efforts to explore the foundations of that respect really so problematic, especially given a religiously-infused constitutional provision addressing “the sanctity of unborn life” clearly in the mix?
That same IVF doctor who noted the need to “respect” embryos looked at the state of the profession and lamented, “We were not prepared for any of this.” NBC put that quote in large bold type, but today many journalists and commentators seem to suggest that things were just fine until those pushy theocratic Alabama judges came along. Parker instead concludes that “The American states, unfortunately, have not followed the example of other Westernized countries that have regulations that achieve both the protection of life and the promotion of parenthood. Ultimately, however, it is for the Legislature to decide how the IVF industry can help parents have children.”
Despite the LePage case sitting before the all-Republican elected state Supreme Court for months, the Legislature was clearly not prepared to meet its moment when the unsurprising result was released. There were no balanced bills at the ready, just a mad scramble to enact something—anything—in the hope of making the pressure and bad press go away. But granting immunity from malpractice is a perverse solution: It treats victims like the LePage family—not negligent IVF facilities—as the problem.
In Washington D.C. other lawmakers sought to ride the publicity wave in another harmful direction. Unlike Alabama lawmakers, Senator Tammy Duckworth of Illinois did have a bill at the ready. It had not advanced in prior years for good reasons. Most medical oversight is not federalized, and Duckworth’s bill is often vaguely worded and would do nothing to limit the longstanding problematic practices of the IVF industry. It also creates a new right to taxpayer-funded IVF treatments, and the bill purposely would block most efforts by states to regulate the practice. Regarding enforcement, it would authorize the DOJ and private individuals to sue not negligent doctors but rather states or other bodies that might try to restrain them. Nevertheless, with the media wind at their backs Duckworth and the Democratic leadership tried to blast it through the Senate on a unanimous-consent voice vote.
To her credit, Senator Cindy Hyde-Smith of Mississippi objected, bringing the legislative sausage grinder to a halt. That’s a good thing. The problems of IVF as it is practiced in the U.S. are complex and longstanding. They need to be addressed—but not through the politics of panic.
John Murdock is an attorney who writes from Texas.
There is certainly plenty of room for discussion about the regulation of IVF facilities and their custodianship over embryos, but the immediate legislative response (and whatever flaws it may have) was entirely due to the extreme nature of the ruling and how radically it upended the status quo.
The ruling was not about any regulation or lack thereof on the part of clinic, nor was it about a failure of the clinic’s duty to properly maintain the embryos in its care. Instead, the Court concluded that a frozen embryo is an “unborn child” and that accidental destruction of an embryo amounted to “the Wrongful Death of a Minor.” Far from resolving a regulatory issue, this ruling instantly and unexpectedly overturned an entire industry and raised many questions about the future of IVF, the legal status of embryos, and the many ramifications resulting from this ruling (e.g. insurance coverage, tax credits, etc.). Good court rulings provide clarity; this one mainly created confusion. The legislature’s quick action was necessary to provide a measure of stability after the court’s decision.
Chief Justice Parker’s concurrence is especially troubling because of its strong reliance on “the theologically based view of the sanctity of life adopted by the People of Alabama.” His decision is based as much on Christian dogma as on statutory law, which should be unacceptable in a court ruling. Mr. Murdock excuses this by pointing to the use of religious language by Abraham Lincoln and Martin Luther King. This is a category error. Lincoln and King were political figures whose use of such language was intended to inspire their audiences to support their political causes. Parker, on the other hand, is the Chief Justice of a state Supreme Court and has a sworn duty to rule according to established law. By conflating his conservative Christian views with state law, he unconstitutionally imposes religion into what should be a neutral ruling.