February 27, 2024

For Duckworth, the Alabama embryo court ruling is personal

The Illinois senator plans to try and force a vote on legislation enshrining a right to in-vitro fertilization.

Source: National Journal


Sen. Tammy Duckworth’s journey to begin a family was not a smooth one. And without in-vitro fertilization, it would have been an improbable one.

The Illinois Democrat told National Journal that she had put family plans on pause for her military career. “My unit that I had just left command of was notified that it was deploying to Iraq,” she said. “At which point, of course, I volunteered to go with them because I couldn’t see letting the unit that I commanded for three years go off to war without me.”

In Iraq, Duckworth was wounded, losing both of her legs when her helicopter was shot down. This delayed the decision to have children until she was in her 40s. When she was referred to a hospital for fertility treatments, Duckworth said, “The doctor doesn’t even take me into her office. She just comes and pulls me aside in the waiting room, on the side, and said, ‘Yeah, you’re 42 now. You’re just too old. You’re never going to get pregnant. There’s no chance for you through fertility treatment.’”

Duckworth believed the doctor—until she became a member of Congress and received a recommendation that led to the IVF treatments that helped her give birth to her children.

“I wasted two and a half years,” she said. She was 46 when she had her first daughter, Abigail. Duckworth suffered a miscarriage, and then her second daughter, Maile Pearl, was born after she turned 50. With the arrival of her second daughter, Duckworth made history, becoming the first senator to give birth while in office.

Now, Duckworth is attempting to enshrine into law a right to in-vitro fertilization and other assisted reproductive technology, particularly in the wake of an Alabama court decision that ruled frozen embryos should be treated as “children.”

Duckworth introduced a bill last month that would create a statutory right for people to access these technologies, an individual right over their reproductive genetic materials, and a right for health care providers to perform these services. Democrats will try to pass the bill via unanimous consent on Wednesday, meaning any one senator can block quick passage. Some Republicans already have indicated their unease with the legislation.

Duckworth attempted to pass a similar bill through unanimous consent in 2022, but that effort was blocked then by Sen. Cindy Hyde-Smith of Mississippi.

The Alabama Supreme Court renewed the debate over IVF when it determined that a set of frozen embryos that had been dropped by a patient who intruded in a restricted area at a clinic were considered "children" and thus were subject to a wrongful-death law for minor children.

Now, the University of Alabama at Birmingham has paused IVF treatments “that involve egg fertilization, embryo development or embryo transfer as it evaluates the Alabama Supreme Court’s decision that a cryopreserved embryo is a human being,” the university told National Journal in statement. The university said it must “evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”

Eve Feinberg, associate professor of obstetrics and gynecology at the Northwestern University Feinberg School of Medicine, said that “scientifically, every embryo more than likely is not going to become a person.”

Feinberg noted that the U.S. Supreme Court, by overturning Roe v. Wade in 2022, left it “in the hands of the individual states to decide when their citizens are going to be protected."

"By turning that back to the state, it opened a door widely for claims of personhood to come forth,” she said.

According to the advocacy group Pregnancy Justice, the fetal-personhood movement focuses on treating fetuses as legal persons, giving them statutory rights and protections. In 2018, Alabama voters approved an amendment to their constitution stating 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.”

The justices on the Alabama Supreme Court relied on this language as part of their argument that frozen embryos are to be treated as children.

Multiple Senate Republicans who spoke with National Journal expressed support for IVF but were unsure about supporting Duckworth’s bill. Some said that the issue should be left to the states.

Alabama Gov. Kay Ivey's office said in a statement Tuesday that “in Alabama, we work to foster a culture of life, and that certainly includes IVF."

"The Alabama Legislature is working diligently to address this so we can ensure we are protecting IVF and life itself,” the statement said.

Democrats in the Alabama state House have introduced a bill to clarify that embryos outside of the uterus are not considered unborn children or human beings under state law.

“I believe that IVF is both pro-life and pro-family. ... Alabama will pass a law to protect IVF,” Republican Sen. Katie Britt of Alabama said.

Sen. Bill Cassidy of Louisiana, a doctor and the top Republican on the Health, Education, Labor, and Pensions Committee, said the Alabama ruling worries him because he is supportive of IVF. But he added that didn’t think federal action was needed to protect the right to the procedure.

“These are sensitive issues,” said Republican Sen. Mike Rounds of South Dakota. “Rather than simply having Congress try to do a one-size-fits-all to begin with, I think the individual states, just almost as separate laboratories as we sometimes call them, will look at different approaches.”

Sen. Cynthia Lummis, a Republican from Wyoming, told National Journal she doesn’t believe Congress should step in yet but is “hopeful that the state of Alabama will address this itself."

"And that's why I want to take a wait-and-see [approach],” Lummis said.

For many going through IVF, Duckworth said, waiting for Alabama to reverse the decision causes needless harm.

“When the University of Alabama paused the IVF process, there were already people who had been taking injections and were literally hours away from an IVF procedure, and that ended,” she said. “Just the medication is $5,000 to $7,000. Those families lost out on the ability to go through a whole cycle, and now they may have to travel to a completely different state.

“This isn't just about Alabama. This is about the whole country.”

By:  Erin Durkin and Savannah Behrmann