2 days ago
Alabama IVF ruling looms over 2026 statewide elections
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)
The Alabama Supreme Court's 2024 decision declaring frozen embryos children could be a factor in Alabama's 2026 elections, particularly in the races for attorney general and Supreme Court.
The decision halted IVF treatments across the state and started a debate that is now looming over upcoming statewide elections.
Alabama Supreme Court Jay Mitchell wrote in a majority opinion that an 1872 law allowing civil lawsuits over the wrongful death of children also applied to frozen embryos, saying that the Wrongful Death of a Minor Act 'provides a cause of action for the death of any 'minor child,' without exception or limitation.'
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Mitchell, now running for the Republican nomination for Alabama attorney general, did not respond to interview requests.
Democrats appear determined to use the opinion — which drew national criticism and led to a swift move from the GOP-controlled Legislature to pass a law intended to protect IVF access — in the coming race. His opponent, Pamela Casey, also seeking the Republican nomination for attorney general, publicly called IVF a 'miracle.'
'Today and everyday, I am thankful for the miracle of IVF that made me a momma x2. Why does my baby boy look so grown?' Casey said in a caption of a photo of her two children on Facebook. In another post, she said, 'Infertility and IVF is not political for me. It is personal.' Casey was not available for an interview.
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The ruling, which stemmed from wrongful death lawsuits filed by couples whose frozen embryos were destroyed in an accident, sparked widespread alarm among patients and medical professionals. Despite the state law, advocates and patients emphasize that the future of IVF in Alabama remains uncertain and a significant concern for voters.
AshLeigh Dunham, an attorney at Magic City Fertility Law and a referee in Jefferson County's Juvenile Court who is running as a Democrat for an Alabama Supreme Court seat, is putting her own experiences with IVF at the center of her campaign.
'I want your family to be able to get the care that they need, the medical care that they need, the food and stability that they need,' Dunham said in a phone interview Tuesday. 'So that's what I'm telling everyone is that I'm pro family. If your family needs IVF to expand and to start, then by all means, you deserve to have IVF, and a state should not actually be able to limit that.'
After years of unsuccessful treatments in Alabama and advice from her fertility doctor, Dunham and her husband traveled to Oregon in 2020. There, she experienced a 'completely different' and more individualized IVF process, which led to three viable embryos and the successful birth of her daughter.
'We have very intelligent doctors, but I think right now, they're a little bit limited in what they can do … For those who fit in the box, the clinics here are wonderful and even the ones who get more individualized care, it is great. But for me, I didn't fit,' Dunham said.
Dunham called the Alabama Supreme Court's decision 'disdainful' and 'horrendous.' She believes the ruling, which granted personhood status to embryos, creates a conflict with IVF.
'Once you create personhood status, you cannot have IVF and personhood. They cannot coexist,' Dunham said.
Corinn O'Brien, an IVF patient and head of Fight for Alabama Families, an organization advocating for IVF access in Alabama, said in an interview that IVF remains a critical issue. O'Brien, who is nine months pregnant after successful treatment, said that the temporary protection offered by the IVF immunity law is 'tenuous at best and could be overturned.'
'We're still fighting for more permanent protection of IVF, whether that be more legislation, whether that be a constitutional amendment, we're still identifying the pathway,' O'Brien said. 'I think the fact that we're still having conversations about it shows everyone we're not done. We still have work to do.'
O'Brien pointed to the stress and uncertainty that patients continue to face, even after the new law, due to looming legal threats, saying that families who need or have gone through IVF feel like a 'political football' in the debate.
'There is nothing literally more pro-family than helping families welcome more children into the world. And that's just common sense,' O'Brien said.
IVF providers are still concerned about long-term IVF access. Dr. Mamie McLean, an IVF provider with Alabama Fertility in Birmingham, said that infertility affects one in six couples, making it a relevant issue for many families in Alabama.
'We believe that the status of IVF treatments in our state feels like a ticking time bomb. We understand there's still a conversation about whether the immunity law is constitutional. And to be transparent, we worry that this is a bad case, one lawsuit away from totally blowing up the immunity law and rendering us back at square one,' said McLean.
