Alabama Gov. Defies Anti-Abortion Groups to Sign IVF Bill, But IVF’s Future Remains Murky

Late Wednesday night, Alabama Gov. Kay Ivey (R) signed a bill to offer criminal and civil legal protections to fertility clinics that offer IVF services, a few hours after it passed out of the legislature across bipartisan lines. The bill comes as reproductive services in the state have descended into chaos following a ruling from the state Supreme Court in February, which declared frozen embryos to be “extrauterine children” eligible for wrongful death lawsuits. This ruling, which came after three Alabama couples sued a clinic for wrongful death after their embryos were accidentally destroyed, prompted several fertility clinics in the state to pause IVF services to avoid the threat of costly lawsuits.

In a statement, Ivey said she’s “pleased to sign this important, short-term measure into law so that couples in Alabama hoping and praying to be parents can grow their families through IVF,” adding that the bill reflects that “Alabama works to foster a culture of life, and that certainly includes IVF.” To be clear, Ivey has supported the policies that directly brought us to the Alabama Supreme Court ruling, including her staunch policy position that “life begins at conception,” and her signing total abortion bans in 2019 and 2023.

By signing the bill, Ivey is still defying sharp opposition from top anti-abortion groups. In a Monday letter (prior to the bill’s passage) addressed to Ivey, a coalition of top anti-abortion activists working with Live Action, Susan B. Anthony Pro-Life America, Students for Life, March for Life, and Eagle Forum urged Ivey to veto the bill. (These groups have previously endorsed Ivey, who’s proudly touted their endorsements.) They argued that “this sweeping legislation would slam the door on any protections for the most vulnerable Alabamians,” ostensibly referring to embryos, and “prevent families from seeking justice for the death or harm caused to their children, and leave a trail of destructive, immoral implications in its wake.” Toward the end of the letter, the activists make the frankly terrifying statement that “IVF is not a morally neutral issue” and that it “would be a grave mistake to rush through any legislation without seriously considering the … very real consequences of leaving a procedure as consequential as creating human life unregulated.”

In other words, leading anti-abortion groups stand with the Alabama Supreme Court’s ruling that accords embryos with legal personhood, effectively bans IVF, and leaves pregnant people vulnerable to wrongful death lawsuits or even criminal charges for pregnancy loss. The letter further lies that “it is an indisputable scientific fact that human life begins at the moment of fertilization” and refers to an embryo as “a child in the embryonic stage of development” (lol), who should “be accorded the same human rights and level of dignity that all other human beings…are granted.” The terrifying letter ultimately throws out a crumb of sympathy for families with fertility struggles who have been left in a devastating limbo by the ruling but maintains its position: “While we understand and share the legislators’ concern for families struggling with infertility, this [bill] will ultimately harm these families and jeopardize the lives of precious children.”

Alabama Republicans’ support for the pro-IVF bill is, if anything, an outlier among the party. On Tuesday, Tennessee Republicans blocked a bill to codify IVF and birth control protections from even coming out of committee because they argued it would weaken and limit the state’s total abortion ban. Last week, U.S. Senate Republicans blocked a bill to codify similar IVF protections on the federal level for a second time in a row.

While IVF is front-and-center right now thanks to the Alabama Supreme Court, anti-abortion activists have long planned to target it as part of a broader agenda to control the full range of reproductive decision-making and accord embryos with personhood. In 2022, leaked audio showed anti-abortion activists advising Tennessee Republicans to wait for the right time to inevitably pick up their attacks on birth control and IVF. And, if Susan B. Anthony Pro-Life America’s letter to Gov. Ivey this week shows anything, it’s that anti-abortion activists are just as determined to target IVF today. 

Alabama lawmakers and Ivey seem to be in agreement that their new IVF law is a short-term solution of sorts to a long-term legal question. Just as Ivey called the law a “short-term measure,” other lawmakers acknowledged to CNN that their bill is a “temporary fix.” Even though at least two clinics said they plan to resume IVF services, at least one clinic, as well as legal experts and fertility advocates in the state say they lack confidence in the bill. Most notably, the “short-term” bill doesn’t address the 2018 state Constitutional amendment that the state Supreme Court cited to recognize embryos as children.

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association told Jezebel in a statement that the legislation passed Wednesday “does not address the underlying issue of the status of embryos as part of the IVF process—threatening the long-term standard of care for IVF patients.” In a statement about the bill, The Center for Reproductive Medicine at Mobile Infirmary said that it won’t resume IVF “until we have legal clarification on the extent of immunity provided by the new Alabama law.” And the American Society for Reproductive Medicine similarly said the legislation “will not provide the assurances Alabama’s fertility physicians need to be confident they can continue to provide the best standard of care to their patients without putting themselves, their colleagues, and their patients at legal risk.”

“There is a lot of ambiguity in the language of the Republican bills that if I was advising a clinic, would give me great pause before resuming treatment,” Katherine Kraschel, an assistant professor at Northeastern University School of Law, told CNN this week.

All told it seems no one’s especially thrilled with this piece of legislation except the Republican lawmakers patting themselves on the back. Anti-abortion groups are pissed, fertility clinics seem hesitant to resume IVF, and, consequently, IVF patients remain left without answers.