Two Alabama reproductive health clinics at the center of a legal and political firestorm over in vitro fertilization (IVF) are asking the U.S. Supreme Court to take up their case.
In their petition, the Center for Reproductive Medicine and the Mobile Infirmary Health asked the court to find that the case should have been dismissed from the outset, because the initial plaintiffs had no standing to sue.
They also said the ruling from the Alabama Supreme Court, which declared that fertilized embryos are children and protected under the state’s wrongful death law, violated their due process protections because they did not have “fair notice” that the state Supreme Court would make IVF illegal.
A response is due by Sept. 4.
The Alabama court “violated bedrock fair-notice requirements” of the 14th Amendment, the clinics wrote in the petition, because there was no notice that the destruction of unimplanted embryos could subject them to civil liability.
In February, the Alabama Supreme Court declared frozen embryos are entitled to the same protections as humans. Immediately following the decision, multiple clinics in the state paused IVF operations for fear of legal repercussions.
The case became a flashpoint in the abortion debate, as Republicans suddenly found themselves on the defensive about whether they can support IVF while also believing that life begins at conception.
The ruling stemmed from two lawsuits filed by patients — against a hospital and fertility clinic — who underwent IVF procedures to have babies and then opted to have the remaining embryos frozen.
The remaining embryos were destroyed when a hospital patient entered the storage area, removed them from a cryogenic freezer and dropped them on the ground.
The court found that embryos and fertilized eggs are considered children under the Alabama Wrongful Death of a Minor Act, even if they have not been implanted in a uterus.
After widespread bipartisan backlash, the GOP-dominated Alabama Legislature passed a bill to shield IVF providers and clinics from liability, allowing some IVF services to restart.
But the legislation did not address when life begins, which the two clinics at the time said left them open to challenges.
It is standard practice in IVF to fertilize several eggs and then transfer one into a woman’s uterus. Any remaining, normally developing embryos can be, at the patient’s request and consent, frozen for later use.
“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,” Mobile Infirmary Health and the Center for Reproductive Medicine said in a joint statement in March.
