The passage of an Alabama bill that aims to protect in vitro fertilization should have been a win for advocates of the fertility procedure, but it has left some legal experts around the country concerned that the new law will do more harm than good.
Alabama Gov. Kay Ivey said the bill — which came after a state Supreme Court ruling in February deemed embryos legally children and left the state’s fertility clinics scrambling — was intended as a stopgap measure to reassure fertility clinics that had halted operations. But legal experts said the bill also carries the unintended consequence of preventing patients whose embryos are destroyed due to clinic negligence or product malfunction from suing for damages.
“It is a knee-jerk, simplistic response to a complex issue,” said Brendan Flaherty, a Minnesota personal injury lawyer who has represented IVF patients whose embryos were lost due to faulty equipment.
The new law protects fertility doctors and patients from criminal and civil liability, and shields providers of “goods used to facilitate the in vitro fertilization process” — like freezer manufacturers — from criminal liability. Those companies that make IVF supplies can still be sued in civil court, but damages are capped at “the price paid for the impacted in vitro cycle.”
The law notably sidesteps the legal issue of whether or not embryos are legally minor children.
“They’re saying the compensation for the loss of a human embryo and potentially your last chance to have children is the same as a fender bender,” Flaherty said. “Does that make sense to anybody?”
“Even if you think embryos should be just like any other property under the law, the law should allow a jury to decide what the property loss is — not the legislature,” he added.
Alabama’s Supreme Court decision stemmed from a case in which someone allegedly wandered into an unlocked embryo storage area in a hospital in Mobile and dropped several frozen embryos on the floor. By the time staff found the embryos, they were no longer viable, the complaint said.
The court ruled that the clinic’s failure to secure the storage area violated the state’s wrongful death statute, because the embryos were considered human beings. The incident was shocking, experts said, but by no means unusual.
One of Flaherty’s newest clients said she recently had what might be her last chance at a biological child dashed by a now-recalled batch of a liquid solution used to promote cell growth while an embryo develops.
“This was our last hope,” said the 39-year-old woman from Illinois who asked to remain anonymous because she hadn’t even told her family about the experience. “They’ve potentially taken away something that we can never get back.”
As IVF and other forms of assisted reproduction have increased in popularity, patients have faced a range of mishaps — from storage tank failures and swapped embryos to defective equipment.
The Society for Assisted Reproductive Technology reported more than 360,000 total IVF cycles in 2021, a figure that has more than tripled since 2003. Hopeful parents can pay anywhere from $15,000 to $20,000 for one round of IVF, and the process can take a significant physical and emotional toll.
Though there is no national database tracking incidents that lead to lost embryos, there were at least 133 lawsuits filed nationally between 2009 and 2019 related to destroyed or damaged embryos, according to a 2020 study. More than 65% of those suits originated from high-profile failures of embryo storage tanks in Ohio and California in 2018.
Bioethicist and University of San Diego law professor Dov Fox, who co-authored the study, said many of these issues arise because the fertility industry is often left to regulate itself.
Professional organizations like the American Society for Reproductive Medicine release guidelines and recommendations of best practices for fertility clinics, which fall under the purview of a range of state government agencies and accrediting organizations, but there is still a dearth of federal or state oversight.
“You leave a multibillion-dollar industry to police itself, and things can go wrong,” Fox said.
According to a report by Spherical Insights, a marketing research firm, the IVF market was valued globally at almost $23 billion in 2022 and is projected to reach over $39 billion within the next decade.
‘Would I be pregnant right now?’
In all of the furor over embryonic personhood, it is easy to forget that a simple locked door could have protected the embryos that launched the Alabama debate, said Adam Wolf, an attorney who has spent much of the last 12 years representing families whose embryos were destroyed due to product malfunctions or lab accidents. He has also represented several couples who later learned their child was not biologically related to them due to mishaps during the IVF process.
“When nobody is providing oversight or supervision, all sorts of mistakes and accidents happen,” Wolf said. “And so the answer to that should never be, ‘Well, let’s just immunize fertility clinics and contribute to the Wild West of the fertility industry.’”
“This bill makes it seem like the greatest injury people face when their embryos die is the financial costs of their fertility cycle. In reality, the financial costs are the smallest part of people’s damages when their embryos perish,” he added.
With only one egg-producing follicle, a uterine fibroid that required surgery and a series of failed fertility treatments in her rearview mirror, Flaherty’s 39-year-old client knew IVF would be an uphill battle.
But the idea that her single viable embryo could be accidentally destroyed by a faulty batch of cell-growth solution was not a possibility she was prepared for.
When the woman’s doctor called the day before Thanksgiving and let her know that they wouldn’t be able to go forward with a planned transfer procedure because her embryo wasn’t viable, she said she, like many women, initially blamed herself.
“I’m just sitting here thinking, ‘What did I do wrong? What could I have done better? I messed up our last chance, our last opportunity here,’” she said. “And then to come to find out it was something completely out of our control, it’s an awful feeling.”
The woman is planning to sue CooperSurgical, the company that manufactured the now-recalled solution, but she said nothing can make up for the likelihood that she will never have a biological child. “No matter how the lawsuit turns out, I’ll always have this lingering question of like, ‘How would that have turned out? Would I be pregnant right now?’”
CooperSurgical did not respond to a question about the woman’s experience but said in a statement that it’s important IVF access is maintained in Alabama.
“We want to make sure all the best products and technologies are allowed to be used across the nation, to support families and bring children into the world,” the statement added. “Legislation across the nation must support all aspects of the fertility industry.”
“There has to remain access to justice for when things go wrong,” said Sarah London, a California attorney who represented families against Pacific Fertility Center in 2018 when a storage tank malfunction led to the destruction of roughly 3,500 frozen eggs and embryos.
London noted that outside of Alabama, state courts around the country have already struck a balance in how these types of cases are handled.
“Embryos are legally treated as property — precious and important and special, unique property — where you can recognize the full scope of the loss and the harm to the women and to the families who went through hell and back to create them,” she said. “But that doesn’t require you to go down the slippery slope of criminal penalties and liability for a provider for a mere accident.”
‘It’s pretty unprecedented’
IVF operations resumed Thursday at two major fertility clinics in Alabama, but the Center for Reproductive Medicine at Mobile Infirmary, the practice involved in the litigation that launched the state Supreme Court debate, said it would not reopen without further legal clarification on “the extent of immunity provided by the new Alabama law.”
“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,” a representative said.
“Most fertility providers have the absolute best intentions, right? They want to help families have children,” said attorney Tracey Cowan. “That being said, it’s a very lucrative industry, and sometimes corners get cut. So to give immunity for gross negligence or recklessness or even criminal intent is pretty unprecedented.”
Cowan currently represents 140 people whose embryos were allegedly destroyed or damaged after contact with the same affected batches of CooperSurgical’s IVF solution that affected the Illinois woman’s embryo. Cowan said she thinks the Alabama law was ultimately an overcorrection.
“I have clients who have sold their cars, who have gone into debt, who are living on ramen just so that they can finance IVF services,” Cowan said. “But even with that great expense, most of my clients, in my experience, the financial damage to them is the smallest component of their damage.”
“If you had all of your chances for children wiped out, and somebody said, here’s a check for 12 grand. I think that that would be devastating to most people, and probably not what the legislators here intended.”
