Lawmakers in Both Parties Call to Protect IVF After Alabama Ruling

Lawmakers across the country are scrambling to safeguard access to in vitro fertilization (IVF) after several clinics in Alabama paused treatments over a recent state supreme court ruling that classified frozen embryos as children.

The controversial decision by Alabama’s top court effectively opened the door for legal action against those who discard frozen embryos during IVF, a widely-used fertility treatment method involving the fertilization of eggs outside the body. Now the fight over the procedure will move to the legislative realm, with both Democrats and Republicans alike calling to protect the procedure in law. Some Democratic legislators have already introduced measures aimed at preserving the rights of individuals seeking fertility treatments, but a bipartisan solution is yet to emerge as Republicans grapple with reconciling their support for IVF with anti-abortion stances.

Sen. Tammy Duckworth, an Illinois Democrat who had her two children via IVF and has spearheaded the effort in Congress to protect the treatment, tells TIME that no Republicans have expressed support for her legislation. Her bill would enshrine a statutory right for patients to access IVF services nationwide and retain authority over how sperm or egg cells are used during such treatments. “Crickets. Not a single one of them has come forward,” Duckworth says.

Yet several prominent Republican figures, including former President Donald Trump, have voiced their support for IVF treatments and called on legislators to come up with a solution that protects fertility clinics and preserves the treatment. Former South Carolina Governor Nikki Haley, Trump's top rival for the Republican nomination, initially said she supported the Alabama ruling but then walked back her comments.

The Senate GOP's campaign arm released a memo telling candidates to affirm support for IVF. "When responding to the Alabama Supreme Court ruling, it is imperative that our candidates align with the public's overwhelming support for IVF and fertility treatments," National Republican Senatorial Committee executive director Jason Thielman wrote, warning that Democrats could use the decision as a campaign issue.

Read More: As Her Clinic Pauses IVF, an Alabama Doctor on What’s Next After the Court’s Embryo Ruling

“Republicans seem to finally be getting the message that they are out of touch with what vast majorities of Americans—even pro-life Americans—want,” Duckworth says. She first introduced legislation to protect IVF in 2022, but Republicans blocked the bill from passing. Now, she’s hoping the pressure from voters will spur Republicans to take action on her latest bill. “I wish Republicans would have come around before people got hurt," she says, "but I hope that at least now they’ll help me fix it and protect Americans across the country from being criminalized for trying to start or grow a family through IVF before other states follow Alabama’s lead.”

The Republicans calling to protect IVF come amid a broader struggle within the GOP to navigate the increasingly complex landscape of reproductive rights following the U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal right to abortion.

As Republicans rush to limit the damage of the court’s ruling and develop a unified position, the Biden Administration has pointed to legislation that more than 120 House Republicans, including House Speaker Mike Johnson, co-sponsored last year that would have restricted IVF by establishing that “the term human being includes all stages of life.” The GOP's previous legislative stance, the White House says, appears at odds with its recent calls to support IVF, highlighting a potential inconsistency in its approach to reproductive rights.

There's even a difference between the positions of the two Republicans vying to be the next President. Trump on Friday called on the Alabama legislature to “find an immediate solution to preserve the availability of IVF” in the state, while Haley has cautioned against taking legislative action. “Government doesn't need to get into something this sensitive,” she told NBC News on Saturday. “This should be between the doctors and the parents, period… If they need to do legislation to fix it, that’s fine, but I don’t want states to have knee-jerk reactions to insert government into the conversations with doctors and parents.”

The Alabama legislature is also wrestling with how to respond to the state court's decision. Alabama house minority leader Anthony Daniels, a Democrat, recently proposed legislation aimed at clarifying the legal status of embryos by establishing that “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law.” State sen. Tim Melson, a Republican, has said he plans to file a bill clarifying that embryos are not human life until they are implanted inside a uterus.

But both bills could face an uphill legal battle. Daniels’ legislation, which has no Republican co-sponsors, would be at direct odds with the Alabama supreme court’s ruling that frozen embryos are considered children under the state constitution. And Melson’s bill, which is yet to be released, may require a constitutional amendment.

“We firmly believe in the fundamental right to life and the dignity of every woman to bring life into the world,” Alabama senate Republicans said in a statement. “We are committed to supporting strong families and providing women grappling with infertility the resources and support they need to build healthy and happy families.” Alabama house speaker Nathaniel Ledbetter, a Republican, did not respond to a request for comment on how GOP state lawmakers would respond legislatively.

Alabama’s Republican Attorney General Steve Marshall has reassured IVF patients and providers that the ruling will not be wielded to prosecute families or providers. But some clinics have decided to pause IVF treatments over the legal uncertainties stemming from the court's decision.

Meanwhile at the federal level, Duckworth has been getting personal in her messaging. She told TIME that during her own IVF experience more than 10 years ago, three of her five fertilized eggs were found not to be viable and were discarded, an action that could now be considered manslaughter under Alabama law. “You can't have it both ways,” Duckworth says of pro-life Republicans who claim they support IVF. “Despite what Donald Trump says, you can’t actually be supportive of protecting IVF but then also say a fertilized egg is a human being so women can't have reproductive choice.”