Whether Making Laws or Babies, Caution is Needed.
We wrote last week about the Alabama Supreme Court case which held that under that state’s law a frozen embryo housed in a laboratory was a child as a matter of law and the parents of such a “child” had legal rights to compensation for loss of the child through negligence. Chances are the reader may have come across the national uproar caused by this ruling and the response of the medical community that undertakes these procedures.
The Alabama legislature condemned this ruling and has raced to reverse it. On February 27, the House of Representatives entertained HB 237 as corrective legislation. It passed 94-6. The Senate passed its own bill 32-0. All done in 16 days. The bills say this:
“….No action, suit, or criminal prosecution shall be brought or maintained against any individual or entity providing goods or services related to in vitro fertilization except for an act or omission that is both intentional and not arising from or related to IVF services.
As this writer reads the proposed statute, it would seem that any IVF service provider has immunity from any claim related to the service. So, if they implant the wrong embryo or the procedure is botched and the intended mother is harmed, it would seem that the medical provider is off the hook unless someone proves the harm was intentional.
Meanwhile, it appears that the legislators who drafted the law didn’t pay much attention to the case they are so incensed by. . Page through that case and you will find explicit citation to the Alabama Constitution as it was amended by the electorate in 2018.
Here is what it says at Article I, Section 36.06
(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.
(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate. [Emphasis supplied]
(c) Nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.
Thus, the state constitution clearly declares that it is the public policy of Alabama to protect the rights of unborn children in all manners and measures. The new law, now about to arrive at the Governor’s desk, says that unborn “children” and their parents have no rights or protections if they are the product of in vitro fertilization unless they are harmed intentionally. One has to ask how are these “children” and “parents” equally protected under the laws of the state? Having posed that question it should be noted that there remains controversy over whether Alabama’s 1901 Constitution does afford its citizens rights to equal protection. See 53 Alabama Law Review 1:135 (2001).
