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Alabama clinic resumes IVF treatments under new law shielding providers from liability

Dr. Mamie McLean, left, Dr. Michael Allemand, center, and Dr. Janet Bouknight, right, react after the Senate passed SB159 bill (IVF Fertility Bill), Wednesday, March 6, 2024, in Montgomery, Ala. (AP Photo/ Butch Dill)

MONTGOMERY, Ala. (AP) — At least one clinic in Alabama has resumed in vitro fertilization treatments after the governor signed a bill into law shielding providers from potential legal liability raised by a court ruling that equated frozen embryos to children.

Alabama Fertility Specialists performed several embryo transfers Thursday, news outlets reported. Video from CBS News showed staff celebrating with a toast, and Dr. Mamie McLean said seeing patients again was “incredibly exciting."

“We were able to talk about IVF care,” McLean told CBS News. "We were able to timeline — lots of smiles, lots of hope and optimism.”

Alabama Fertility was among three clinics that paused the procedures after the Alabama Supreme Court ruled last month that three couples whose frozen embryos were destroyed in an accident at a storage facility could pursue wrongful death lawsuits for their “extrauterine children.” The ruling, treating an embryo the same as a child or gestating fetus under the wrongful death statute, raised concerns about civil liabilities for clinics.

The new law, which took effect immediately upon signing Wednesday night, shields providers from prosecution and civil lawsuits “for the damage to or death of an embryo” during IVF services.

Patients who had IVF procedures — that were abruptly canceled or cast in doubt — are able to move forward again at clinics with plans to resume. They described a mixture of relief and gratitude, but also frustration and anger over the disruption and intrusion.

Meghan Cole, 31, who had a Feb. 23 appointment for an embryo transfer to their surrogate, was told 36 hours before the procedure that the appointment would be canceled. She said they are moving forward again, although it will take several weeks for the medication protocol to get the surrogate ready again.

“We've been delayed and obviously lost some money and time, but we are back on track This is the best-case scenario out of the really hard last couple weeks,” Cole said. She said their surrogate could have walked away, and they "can't thank her enough" for sticking with them.

“These are real people and real lives that this interrupted. I just want people to understand that what we vote on and what we think is important has consequences and sometimes they are unintended,” Cole said.

Hannah Miles, 29, will be able to proceed with an embryo transfer on March 19, in the hopes of having her first child.

“Relieved, grateful,” Miles said of learning that IVF treatments were proceeding. “I’m grateful for the Alabama Legislature listening to us. I know we really didn’t give them a choice.”

The court ruling had put in question if that scheduled transfer of their one remaining embryo could go forward.

“I was choosing to kind of live day-by-day. That’s pretty much what you do with IVF. I was more mad than anything. This has been hard enough. How dare y’all make this harder,” she said of the court ruling.

Jamie Heard, 37, had her first child through IVF in 2022 and wants to add another. She had her first doctor's appointment on Feb. 14 to start preparations for an embryo transfer in August. The court ruling came down two days later, throwing her plans into question.

“It felt like our choice to expand our family was kind of being taken away,” Heard said.

Heard said she is concerned the ruling equating embryos to children could continue to leave a cloud of uncertainty over IVF. She said she has questions about what they can do with unused embryos and about what the legislative solution — legal immunity for clinics — means for patients like her if something goes wrong.

The University of Alabama at Birmingham said in a statement Thursday that it was “working to get patients scheduled or rescheduled for treatments as soon as possible," but did not say exactly when that would be. A spokeswoman did not immediately respond to an email Friday.

“Patients whose health circumstances or phase of treatment requires greater urgency will be scheduled first,” the statement said.

The Center for Reproductive Medicine in Mobile said in a statement that it would not reopen until it had legal clarity “on the extent of the immunity” the new state law provided.

“At this time, we believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own,” the statement said.

The center was a defendant in wrongful death lawsuits the Alabama Supreme Court considered in its IVF ruling last month.

The Associated Press