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Law protecting Alabama IVF may do more harm than good, critics say

By 37ci3 Mar9,2024

the passage of Alabama bill Supporters aiming to protect tube fertilization should have won fertility procedurebut it has some legal experts in the country worried that the new law will do more harm than good.

Alabama Gov. Kay Ivey said the bill, which came after the state Supreme Court ruled in February that embryos are legally considered children and left the state’s fertility clinics in the lurch, was intended as a stopgap measure to appease the shuttered fertility clinics. But legal experts say the bill also has the unintended consequence of preventing patients whose embryos are destroyed due to clinical negligence or product failure from suing for damages.

“It’s a knee-jerk, simplistic response to a complex issue,” said Brendan Flaherty, a Minnesota personal injury lawyer who represents IVF patients whose embryos have been lost to faulty equipment.

The new law protects fertility doctors and patients from criminal and civil liability, and protects suppliers of “goods used to facilitate the process of in vitro fertilization,” such as freezer manufacturers, from criminal liability. IVF supply companies can still be sued in civil court, but damages are limited to “the price paid for the affected in vitro cycle.”

The law specifically leaves aside the legal issue of whether embryos are legally minors.

“They say the compensation for the loss of a human embryo and potentially your last chance to have a baby is the same as a hedge bender,” Flaherty said. “Does this make sense to anyone?”

“Even if you think embryos should be like any other property under the law, the law should allow juries, not the legislature, to decide what constitutes a loss of property,” he said.

The Alabama Supreme Court ruling stemmed from a case in which someone allegedly broke into an unlocked embryo storage area at a hospital in Mobile and dumped several frozen embryos. By the time workers found the embryos, they were no longer viable, the complaint says.

The court ruled that the clinic’s failure to secure its storage area violated the state’s wrongful-death statute because the embryos were considered human. Experts say the incident is shocking but not unusual.

One of Flaherty’s newest clients said he recently had his last chance at a biological child with a recalled batch of a liquid solution used to promote cell growth as an embryo develops.

“It was our last hope,” said the 39-year-old woman from Illinois, who spoke on condition of anonymity because she had not told her family what had happened. “They took something from us that we could potentially never get back.”

As IVF and other forms of assisted reproduction have grown in popularity, patients have faced a series of misfortunes – storage tank failure and modified embryos for defective equipment.

Society of Assisted Reproductive Technologies reported on this Over 360,000 total IVF cycles In 2021, this number has more than tripled since 2003. a cycle IVF and the process can take a significant physical and emotional toll.

While there are no national database tracking incidents involving lost embryos, at least 133 lawsuits involving destroyed or damaged embryos were filed between 2009 and 2019. 2020 education. More than 65% of these suits stemmed from high-profile failures of embryo storage tanks. Ohio and California in 2018.

Dov Fox, a bioethicist and University of San Diego law professor who co-authored the study, said many of these problems arise because the fertility industry is often left to regulate itself.

Professional organizations such as the American Society for Reproductive Medicine provide guidelines and recommendations best practices for fertility clinics under the purview of several state government agencies and accrediting organizations, but still lacking federal or state oversight.

“You’re policing a multi-billion dollar industry and things can go wrong,” Fox said.

according to report The IVF market is estimated to be worth almost $23 billion globally in 2022 by Spheric Insights, a marketing research firm, and is forecast to grow to more than $39 billion over the next decade.

‘Would I be pregnant right now?’

In all the furore over embryo identity, it’s easy to forget that a simple locked door can protect the embryos that started the Alabama controversy, says attorney Adam Wolf, who has represented families with embryos for most of the past 12 years. destroyed due to product failure or laboratory accidents. He has also represented several couples who learned that their child was not biologically related to them due to mishaps during the IVF process.

“When no one is monitoring or supervising, all kinds of mistakes and accidents happen,” Wolf said. “And so the answer to that should never be, ‘Let’s just immunize fertility clinics and contribute to the Wild West of the fertility industry.'”

“This bill appears to be the biggest injury people face when their embryos die, the financial cost of their reproductive years. “In reality, the smallest part of the damage caused when human embryos are destroyed is the financial cost.”

With only one egg-producing follicle, uterine fibroids requiring surgery, and a series of failed fertility treatments in the rearview mirror, Flaherty’s 39-year-old client knew IVF would be an uphill battle.

But the idea that her single living embryo could be accidentally destroyed by a faulty cell growth solution was not a possibility she was prepared for.

When the woman’s doctor called the day before Thanksgiving and told her they couldn’t move forward with the planned transfer procedure because her embryos weren’t viable, she said, like many women, she initially blamed herself.

“I’m sitting here thinking, ‘What did I do wrong?’ What could I do better? I blew our last chance here, our last chance,” he said. “And then to find out it’s something completely out of our control, it’s a terrible feeling.”

The woman now plans to sue CooperSurgical, the company that makes the recalled solution, but she said she would never trade the possibility of having a biological child for anything. “No matter how the trial goes, I’ll always have one question: ‘How did this happen?’ Am I going to get pregnant now?’”

CooperSurgical did not respond to a question about the woman’s experience, but said in a statement that providing access to IVF in Alabama is important.

“We want to make sure that all the best products and technologies are allowed to be used across the country to support families and give birth to children,” the statement added. “Legislation in the country must support all aspects of the fertility industry.”

“There should be access to justice when things go wrong,” said Sarah London, a California attorney who represented families against Pacific Birth Center when a storage facility malfunctioned in 2018. led destruction of approximately 3,500 frozen eggs and embryos.

Outside of Alabama, state courts around the country have already struck a balance in handling such cases, London noted.

“Fertilization is legally treated as property – precious and important and special, unique property – where you can recognize the full extent of the losses and the damage to the women and families who have gone through hell and back to create them,” she said. . “But that doesn’t mean you have to go down the slippery slope of criminal penalties and liability for a provider just because of an accident.”

“This is unprecedented”

IVF operations continued On Thursday, Alabama’s two major fertility clinics, but the Mobile Hospital Reproductive Medicine Center, which is involved in a lawsuit that has sparked a state Supreme Court debate, “said it will not reopen without further legal explanation regarding the extent of the immunity provided under the new Alabama law.”

“Currently, we believe the law makes it difficult to address the state’s currently held fertilized eggs and creates challenges for doctors and fertility clinics trying to help deserving families have children of their own,” she said.

“Most productivity providers definitely have the best intentions, don’t they? They want to help families have children,” said attorney Tracey Cowan. “It’s a very lucrative industry and sometimes corners are cut. Thus, granting immunity for gross negligence or recklessness or even criminal intent is quite unprecedented.

Cowan is currently representing 140 people who allegedly had their embryos destroyed or damaged after coming into contact with the same affected batches of CooperSurgical’s IVF solution that affected the embryos of an Illinois woman. Cowan said he thinks the Alabama law is ultimately an overcorrection.

“I have clients who sell their cars, go into debt, live on ramen just to finance IVF services,” Cowan said. “But despite this huge cost, most of my clients, in my experience, the financial damage to them is the smallest component of their loss.”

“If all your chances for children were ruined and someone said, here’s a check for 12 grand. I think that would be devastating to most people and probably not what the legislators intended here.”

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