VA Senators speak on IVF protections; how the treatment is unique to Hampton Roads

PORTSMOUTH, Va. (WAVY) — After the Alabama Supreme Court ruled that frozen embryos could be considered children under the law, there have been growing concerns on what that could mean for the future of in vitro fertilization, or IVF.

The IVF treatment has a unique tie to the Hampton Roads area after the first child to ever be born using that method was in Norfolk in 1981. The treatment involves using sperm to fertilize an egg outside of a woman’s uterus before later being implanted.

Although the Alabama court ruling didn’t ban or restrict the treatment itself, the new categorization of the frozen embryos could have a ripple effect on liability and access. Virginia Senators Tim Kaine and Mark Warner have both spoken out in support of protecting IVF treatment.

Warner attributed these changes to the reversal of Roe v. Wade. He said the Alabama ruling was “prohibiting IVF,” but the reality is a little more complicated than that — especially after the Alabama state legislation passed a bill protecting IVF health care providers from criminal and civil suits, granting health care providers immunity. The bill is waiting to be signed into law by their governor.

The Alabama bill would “grant immunity in both civil and criminal for acts not intentional and not arising from or related to IVF services.” It is also intended to apply retroactively. This bill wouldn’t reverse the Supreme Court ruling, but instead takes away liability.

Kaine expressed his support for protecting IVF through co-sponsorship of the Access to Family Building Act.

The bill co-sponsored by Kaine wouldn’t necessarily prevent lawsuits, but does leave more room for argument to protect health care providers, using language allowing them to continue the treatment “with the provision of evidence-based information.”

The first IVF birth took place in Norfolk on Dec. 28, 1981, with baby Elizabeth Carr. Kaine spoke about the historical birth in a livestream on social media.

“What seemed like unimaginable science fiction in 1981, there are now, by best estimates, 12 million people walking this planet, born by IVF,” Kaine said, in a Facebook live.

The proposed house bill doesn’t explicitly provide immunity. However, the bill would allow the Attorney General to commence civil action if any entity “enacts, implements, or enforces a limitation or requirement that prohibits, unreasonably limits, or interferes” with the rights listed in the bill.

The Alabama Supreme Court’s ruling allowed individuals to sue over the wrongful death of a minor in cases where embryos are mishandled by considering the embryos “unborn children, regardless of their location.”

This came under the claim of negligence by individuals after a hospital patient walked into the room holding embryos, removed them from preserving cold temperatures and dropped them on the floor — resulting in them no longer being viable.

The plaintiffs claimed the hospital is responsible for the loss of the embryos, and that this fell under wrongful death of a minor. The plaintiffs also alleged that the hospital was supposed to secure these rooms, and neglected to do so. Lower courts dismissed the claims by saying the embryos didn’t fit the description of a ‘person’ or ‘child,’ until the Supreme Court ruled against that.

As a result, hospitals became more reluctant to continue the treatment in order to avoid potential lawsuits. This caused concerns across the nation on whether this would affect treatment in other states.

Since doctors also tend to produce several embryos that don’t always get implanted, the ruling could lead to questions on what to do with unused embryos. Although the latest Alabama bill would grant immunity, the classification under the Supreme Court that the embryo is a child could lead to more regulation and restriction on how the treatment operates.

It’s still unclear how this ruling could impact the U.S. and if other states will follow suit. The Access to Family Building Act is just one of the latest efforts to prevent restrictions surrounding IVF.

“It’s as simple as a bill can be,” Kaine said, in his live. “Health care providers have a right to provide fertility treatment including in vitro fertilization services. Patient have a right to access fertility treatment, including in vitro fertilization services. This is not a mandate. The enforcement provisions are provisions that allow a person or health care provider to bring action against the state or governmental entity that tries to interfere with the right that they have.”