A crowd at the Alabama Statehouse listens to Corrin O'Brien of the Fight for Alabama Families Coalition speaker during a rally for protections for in vitro fertilization on Feb. 28, 2024 in Montgomery, Alabama. The rally took place prior to scheduled committee hearings in the Alabama Legislature on legislation to protect the procedure. (Brian Lyman/Alabama Reflector)
Two couples on Wednesday dropped a lawsuit against IVF providers in Mobile that claimed that the accidental destruction of their embryos constituted a wrongful death claim. One lawsuit remains.
The motion from the couples requested that the court dismiss their case with prejudice, meaning plaintiffs cannot make the same claim in the same court. The filing did not state a reason for the decision.
The two couples — James and Emily LePage; William Tripp Fonde and Caroline Fonde — filed their lawsuits against the Center for Reproductive Medicine and Mobile Infirmary Medical Center in 2021 after a patient in 2020 removed an embryo from the cryogenic environment, leading to its destruction.
Another lawsuit from Felicia Burdick-Aysenne, also filed in 2021, is still pending. A hearing in the case is set for September.
The parties brought the two lawsuits together to the Alabama Supreme Court, leading to a February decision that halted IVF services in the state.
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In a majority opinion, Justice Jay Mitchell wrote that there was no exception for frozen embryos under an 1872 law allowing civil lawsuits for the wrongful death of children, or under a 2018 state constitutional amendment that required the state to “ensure the protection of the rights of the unborn child.”
Chief Justice Tom Parker, concurring with the opinion, wrote “that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” which he argued was set in policy when Alabama voters approved the 2018 amendment.
The Alabama Supreme Court’s ruling, which allowed parents of frozen embryos to claim civil damages, led to several IVF programs in the state to temporarily suspend operations. The Alabama Legislature passed a bill in March that extended criminal and civil immunity to IVF clinics for operations.
Messages were left Thursday with attorneys for the parties.
Women undergoing IVF in Alabama face uncertainty amid legal battle
Infirmary Health, one of several entities sued over the accidental destruction of frozen embryos at the clinic in 2020, has temporarily resumed IVF treatments at the hospital, but because of litigation concerns, IVF services at the hospital will be halted on Dec. 31 .
The Center for Reproductive Health, the other defendant in the case, plans to move its operations to new facilities in in Mobile and Dothan.
The Legislature’s bill shielding IVF providers from liability does not address when life begins. Democrats argued that the court’s reliance on the 2018 constitutional amendment implies that the issue can only be resolved through another constitutional amendment. Republicans, who control both chambers of the Legislature, have shied away from addressing that issue.
After the bill went into effect, at least two other clinics providing IVF resumed services. Mobile Infirmary said at the time they weren’t reopening until they had clarification about the immunity the state provided.
Though lawmakers said they would establish a task force to study a more permanent solution, that has yet to occur , leaving families in an atmosphere of uncertainty as they make fertility treatment decisions.
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