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A law professor breaks down the impact of Alabama's IVF ruling on Florida's legislative process

The lawsuit challenges a state ban on Medicaid covering gender-affirming hormones and surgeries.
The lawsuit challenges a state ban on Medicaid covering gender-affirming hormones and surgeries.

A Florida bill that would allow people to file wrongful death lawsuits over the death of an "unborn child" was recently been pulled by its Republican sponsor.

A Florida bill that would allow people to file wrongful death lawsuits over the death of an "unborn child" was recently pulled by its Republican sponsor.

The decision came in the wake of the Alabama Supreme Court decision that frozen embryos are legally protected children. The ruling involved a case in which three couples had their unused embryos destroyed in an accident at a fertility clinic.

With little time left in legislative calendar, the postponement suggests that the bill’s chances of passage are unlikely for this session.

Health News Florida's Cathy Carter spoke with Stetson University law professor Louis Virelli about how the controversial ruling in Alabama sidelined the Florida bill.

Professor, let's start with a quick summary of this proposed legislation that would have allowed civil lawsuits over the wrongful death of what the bill sponsor says is an unborn child.

In general, the bill was designed to define or include within the definition of person, an embryo at conception. And the question then has become the complicating feature of all of this in Alabama — and I suppose in Florida — which would explain why the bill is currently on hold, is that defining an embryo outside the womb as a person has significant implications for in vitro fertilization procedures.

Now, while this bill could potentially still go before the full Florida House, its Senate sponsor, Erin Grall, abruptly pulled the bill, saying it needed more work. With just over a week to go before the session wraps up, with your knowledge of the legislative process, is there any chance this bill will be heard this year?

So, without any firsthand knowledge of what's going on with this particular bill in the Florida Legislature, I think the general consensus is that there is not enough time left in this term for the Senate to consider the bill so that, at least for the time being, the bill won't go forward.

And both sides of the abortion debate here in Florida have attributed the pause to the fallout from the Alabama Supreme Court ruling that frozen embryos should be considered children. Tell us a little bit more about that ruling.

The judge has held that under Alabama law, and particularly an Alabama law from 1872, that all embryos — including those that are not in a woman's uterus — are legal people such that the destruction of them can come with civil liability, meaning the facility that was storing the embryos that were lost, in the Alabama case, can be liable for damages to the owners. And I use owners carefully, to the people responsible for the genetic material creating that embryo for the loss of that person. And that could mean significant damages based on the potential for whoever the embryo ultimately came to be, if they ever became a self-sustaining person, the future earning potential and value of that life lost, it can be a very complicated and expensive process to understand the damages when we're talking about a wrongful death action, or an embryo that has an indeterminate amount of time before it.

Now, while the Florida bill did not specifically mention in vitro fertilization, last week's ruling in Alabama certainly created a political storm for Republicans who were already battling — in many parts of the country — a backlash over their stance on access to abortion.

I think the larger issue in this debate is that we are seeing the complications of an aggressive anti-abortion movement seeking to use personhood to protect embryos at conception from the termination of a pregnancy without discouraging people from trying to become pregnant through in vitro fertilization. So, there's a dichotomy here in the movement, the personhood movement. I think it's generally understood it's designed, at least in part, as an anti-abortion movement. The earlier that an embryo can be defined as a person, the easier it is to protect that embryo from being aborted. It is very difficult to imagine all of the consequences that come from having an embryo have any of the legal rights of a person, let alone all of them. It highlights the fact that in the circumstances, the rights of the parents or the adults involved, the living adults involved, sometimes are inconsistent with the rights that might attach to an embryo. And that balance was lost in Alabama. And that is, frankly, why the Supreme Court in 1973 and Roe and until the recent Dobbs decision, always treated abortion rights as the balance between a gestating embryo and a mother. Those rights sometimes are at odds, and the law needs to be able to recognize them and that's where the challenge lies.

Copyright 2024 WUSF 89.7

Cathy Carter is the education reporter for WUSF 89.7 and StateImpact Florida.