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Them Before Us Podcast
TBU Legal Watch | The Louisiana IVF Bill That Could Gut Pro-Life Protections
00:24:14
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- [00:00]
Patience Sunny
Foreign.
- [00:07]
Jen
Welcome to the Them Before Us podcast where we talk about all things children's rights when it comes to culture, technology, the law. And today we are talking about some legal challenges that are coming up. So I'm Jen, training director for Them Before Us. And we're joined by Patience Sunny, who is our engagement director.
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Patience Sunny
Hey, Patience, it's good to be here.
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Jen
Patience is the expert in all the legal stuff because you're the one doing all the research and you're the one talking to all the people you're in the know. And she wrote up a great summary, kind of a quick hit and a deep dive about what's going on in Louisiana. And she also wrote a little more of a summary that's on the website. You can find all these links in our show Notes after. But Patience and I are going to chat for a little bit about what is going on in Louisiana. So Patience, can you break it down, just kind of give us an overview of the legal challenge in Louisiana right now?
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Patience Sunny
Yeah. So not to be pedantic, but technically a legislative challenge in Louisiana. Louisiana is the only state in the nation that has laws really protecting IVF embryos. And unfortunately what's happening right now is a senator who is usually a great pro life ally, Senator Thomas Presley has proposed legislation to protect IVF and prevent an Alabama situation. And what's really unfortunate is that this is well intentioned legislation that is going to have significant damaging effects, particularly when it comes to the protection of embryos in Louisiana. So there are a few things going on with this bill. Kind of the top line issue. Just like as you're reading through, the first thing that comes up is a change in definition for non viable embryos. So currently in Louisiana law, there's an objective standard for what counts as a non viable embryo, that is an embryo that ceases developing for 36 hours. And what Senator Presley's bill is doing is it's replacing that language with something that's much more vague, much more malleable and something that could be very easily manipulated by an IVF provider who wants to screen and discard embryos. So we're very concerned about that. Our friend Dr. Prentice, who our listeners might remember from our IVF series, actually submitted a written statement to the House committee earlier this week, really highlighting the fact that when it comes to a born person, we have an objective standard for death. We have a medical definition where there's a very objective standard. This is who's alive, this is who's not alive. But with the definition proposed in this bill there's no longer an objective standard for embryo death, which would mean that someone could simply say, well, this embryo is not high enough quality to be considered viable, and make a determination based on something like how the embryo performs in genetic testing or how the embryo was screened, rather than giving every embryo that equal chance at life and that equal protection that currently exists under Louisiana law.
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Jen
Can I pause you for a second to just take our listeners back to what happened in Alabama? I want to say it was the end of 2023. Is that accurate?
- [03:19]
Patience Sunny
And there was right at the beginning of 2024.
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Jen
Okay, so let's talk a little, just briefly, what happened in Alabama that it honestly brought IVF back into sort of pop culture and politics, especially because of the election year?
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Patience Sunny
Yeah, it very much did. So, yeah. Beginning of a presidential election year, plus a big election year for a lot of states, states, congressional candidates. And what happened was the Alabama Supreme Court ruled on a case that began back in 2020 when an IVF clinic in Alabama failed to secure a back room. So an individual who was there as a patient was able to wander in, pick up embryos, drop them because of the extreme cold, and destroy those embryos, killing those embryonic lives. And the parents who were affected by that sued the clinic. And the Alabama Supreme Court eventually found that under the state's wrongful death of a minor act, the clinic was civilly liable because Alabama is a state that recognizes personhood from the moment of inception. So in response to that, the IVF industry temporarily shut down in protest, really saying, this isn't reasonable, we can't operate under this standard. And. And the Alabama legislature very quickly acted to create a carve out for the IVF industry so that they wouldn't be held to the same standard that basically everyone else was being held to. So what's unfortunate, when we hear legislators talk about the Alabama situation, they're often doing so in a way that either masks what happened in Alabama, where the Supreme Court rightly recognized life at conception, recognized that embryos deserve justice, and that IVF clinics need to be acting in a way that really respects and protects those lives. And also. So either kind of hiding that or simply not understanding it. And what was interesting with this Louisiana bill was when I was listening to the Senate committee hearing a couple weeks ago, there were actually pro life legislators in that committee hearing who openly acknowledged that they didn't understand what the Alabama situation was, but they insisted it was something that they wanted to avoid in Louisiana, because what they saw was the IVF industry shut down and that's bad, because IVF creates lives, and we like the lives created via IVF without really having all of that additional context of the things like we talked about in the IVF podcast series, where less than 90% or over 90% of IVF embryos are not making it to birth, where the IVF industry is weeding out embryos, where the IVF industry really isn't being held to a lot of standards and regulations and for instance, isn't even required to report when they accidentally swap embryos and do a lot of things that harm not just the embryos, but also those parents, which is what happened in Alabama. The parents were also harmed by the fact that their embryos had been wrongfully destroyed.
- [06:20]
Jen
Going back to the Louisiana breakdown we started with, point one was that they wanted to shift the definition defining the embryos as sort of alive. They wanted to shift it in some way so it was less clear they're alive. And then you drop them on, you drop the vial on the floor, now they're dead, and you're held in some way responsible. So that vague language is interesting. And then the second point is that you said Louisiana was trying to shift some things around parental rights. Can you go into that a little bit more?
- [06:50]
Patience Sunny
Yeah, absolutely. So in Louisiana, and again, Louisiana state law is very unique when it comes to ivf. They're the only state in the nation that has these laws protecting IVF parents and protecting IVF embryos. And one of the things in Louisiana law is a recognition that parental rights begin at fertilization. So as soon as that embryo exists, those parents have parental rights over those embryos, which means that they owe the embryos a high duty of care. And also means that those embryos have that protective nature that exists when parental rights are acknowledged. We talked at them before us about how parental rights and children's rights are two sides of the same coin, where if you're upholding children's rights to their mom and dad, you are by extension upholding parents rights to their children and vice versa. So having that language in Louisiana law is really an acknowledgement that if an embryo is destroyed, then the parents have also been harmed. And removing that language really takes away opportunities for parents to pursue legal recourse if their embryos are destroyed. And to be perfectly honest, that's kind of intentional in this bill. And I wouldn't necessarily say that it's Senator Presley's intention with the bill, but it is most certainly the intention of those within the industry offering consultation and coming alongside and saying, okay, we'll just, we'll give you legal advice. Here are our concerns. And that's what's really shaping the language in this bill. So removing parental rights removes the level of protection that exists for embryos as well as a level of protection that exists for IVF patients. And it's removing something that is unique and very good about Louisiana law that adds that extra protective measure.
- [08:41]
Jen
There's some language that they're using to say we're trying to protect access for, you know, infertile couples to these, to this industry. But at the end of the day, are they protecting access or are they protecting the industry from liability? And, and if you think about it, who loses out when you think about finances? If the IVF industry was to completely close shop in a state, you know, the government is getting their cut, even though the government is not offering a lot of oversight. You don't want to chalk everything up to malicious intent or it's all about money. But we are talking about a billion dollar industry. And do they really care if one couple's embryo gets dropped on the ground? It's a. Maybe it's a product they need to reimburse them for at some level. You know, they're not necessarily considering these human lives as we want to and think we should. And Louisiana has been doing, and now they're trying to shift away from that to protect access or to protect from liability.
- [09:44]
Patience Sunny
So, yeah, and that, that product language that you used is very much how the industry treats embryos and also gets at another element of this bill. So Louisiana, unlike other states, has clarification in their laws saying embryos are not property, embryos are not owned. In a lot of states, it's kind of in this gray area where functionally they get treated like property, but it doesn't actually explicitly say in law that they are, but it also doesn't say in law that they're persons. So it kind of becomes this push and shovel, especially when, for instance, a couple divorces and has embryos on ice. But in Louisiana law, it very explicitly states embryos are not property. They don't quite say embryos are full human persons in Louisiana law, which is something that we wish it did say. Instead, it classifies them as juridical persons, which is actually the same designation that a corporation has. So it's recognizing some level of personhood, some level of rights. But a change that is in this bill from Senator Presley is a shift from adoption language to donation language when it comes to transfer of custody of an embryo from one couple to another. So again, Louisiana has the best laws in the nation when it comes to this. And under current law in Louisiana, it's recognized as adoption. And there's language in there specifying that, you know, adoption requirements have to be followed when an embryo is adopted, that's very reasonable. That's a basic protection that we have in place for adoption in the United States and in much of the world, recognizing that when a child is not genetically related to those adults, but those adults are going to have parental rights, it's important to make sure that those adults are safe, that what we're doing is in the best interest of the child and maintaining adoption language is a great way to protect those children who were created via ivf. But under this proposed change from Senator Pressley, that adoption language would be replaced with donation language. And one of the interesting things that was pointed out in the House Committee, one of the members said, hey, isn't this an inconsistency in our law? If we, you know, a page earlier explicitly state that embryos aren't property and can't be owned, and then we turn around and say that embryos can be donated because we don't donate people. And so it's creating a schizophrenia in law. And also it's endangering those embryos by taking away the protection that exists. And our president at them before us. Katie has written in the Federalist about recorded instances where known pedophiles have gained access to children via assisted reproductive technologies, usually utilizing surrogacy. And then additionally there's a bill that we've been tracking in Illinois that was presented because of an individual who her father created her via IBS and surrogacy with the intention of abusing her and it and abused her throughout her life. And he would never have qualified to be able to adopt. He was a known criminal. And yet he was able to gain access to children through assisted reproductive technology because Illinois doesn't have the loss that Louisiana has. And so for Louisiana to walk this back is really a matter of children's safety. And it's very alarming to see them attempting to remove this language. And no matter how well intentioned this bill is, it's going to have consequences when they're removing that protective language that exists.
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Jen
Yeah, yeah. One of the other things you mentioned in your write up is that they're shifting the language away from married couples to individuals. And exactly to the point that you just said of an abuser who basically purchased a child for the purpose of abuse. And that's not to say people who want to be a single parent by choice are always going to be abusers. Our larger point is twofold. First, adoption practices mean you have to pass a background check. A lot of people will push back and say, well, you're not requiring typical people who want to get pregnant to pass a background check. Well, because there's a difference when it's your own biological child. Not to say that someone doesn't abuse their own biological children, but that's not the norm. And it is more likely, you're more likely to be abused if there's an unrelated male in your home. And so for that reason, there's been a really high standard for non related adults to care for children, schools, daycares, adoption processes, all these things. And now all of a sudden we've flipped to a place where you can go buy sperm or buy an egg, rent a surrogate, be a Chinese national in your 40s who's a single male, come over and buy a baby that's an American citizen and take it back. These are normal practices that are happening every single day right now. And we're outraged by it. We're trying to get people on board with being outraged, but it seems like we should have agreement that an adult that wants a non related child moving into your home should be able to pass a background check. That feels like something we could all agree on. But, but the other part of that is when they move away from married couples to individuals, they're, they're not even saying it. It's a mom and a dad, but at least it said married couple. It was like, we're kind of close. Now they're just saying that doesn't really matter at all. It doesn't matter if you have a two parent home, as people on the more progressive left like to say. Anyway, they're just saying, yeah, you know, anybody, if you want a child, if you want an embryo, great, go, go for it. And we're saying we need to keep the language that is promoting a married mom and dad at the very least.
- [15:31]
Patience Sunny
Yeah, exactly. And one of the reasons that people get so uncomfortable pushing back against people gaining parental rights over unrelated children using assisted reproductive technology is that they have such an adult centric framework, they're looking at it as, oh, we need to be, you know, upholding equality and protecting same sex couples the same way we would protect the rights of heterosexual couples. When really what's at issue is the children's rights. In that situation, it's not about whether or not it's a same sex couple. It's not about. It's not about the adults involved. It's about whether or not those children are being protected and sent into a safe situation, whether or not their right to their mom and dad is being upheld, and whether or not we're doing our best to make sure the child who has lost their mom and dad still has the benefit of that gender balance that comes with a mother, father, home. So we're coming at it from a children's child centric angle, and that's breaking a lot of categories that a lot of people have. And there's resistance to that because people want to continue to center adults because it's more comfortable.
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Jen
Yeah. The final point you make in the write up is that people who are using IVF and then lose their children are wanting to be able to use the state's medical malpractice laws, but it's again, this dicey thing of, well, are they alive or not? Are they human or not? Is it a product or not? And. But they've not been able to use medical malpractice laws. Right. So. But is this shifting from the original language or is this just. The bill is continuing to say you cannot use medical malpractice to try and defend your embryos?
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Patience Sunny
Yeah. So what the bill is doing is it's, it's significantly limiting liability for IVF clinics. So very limited circumstances where criminal liability would apply almost none. You would basically have to be engaging in fertility fraud for criminal liability to apply. And then civil liability only applies within the bounds of medical malpractice law under this bill. That's a change from the status quo currently in Louisiana. Somebody could bring a civil suit and say, hey, you know, I'm a parent and you destroyed my embryo. And as a parent, the law recognizes my parental rights. Or even just even in the absence of that parental rights, being able to bring a civil suit the way that someone in Alabama did and say, hey, you caused the destruction of this human life. And what the law is doing, what this bill is doing is it's restricting that to just the Medical Malpractice Act. And what we've seen in other states is that couples who have attempted to reply rely on the Medical Malpractice act in order to get justice when their embryos are accidentally swapped or accidentally destroyed, or the clinic uses a toxic solution because somebody mixed things up and the embryos are killed, or somebody wanders in and drops an embryo. In any of those circumstances, couples who try to rely on medical malpractice laws to get justice find Very little opportunity for recourse. Because usually what happens is the courts will say, oh, medical malpractice doesn't really cover an embryo because the embryo was outside of your body at the time that it happened. So it wasn't medical malpractice against you. And if you're not recognizing the embryo as a person either, then you end up with a situation where there is no justice. So limiting it to the Medical Malpractice act would be very concerning from our perspective because we see that as essentially guaranteeing that the industry is never held accountable when embryos are wrongfully destroyed. Which is exactly the industry's goal with this.
- [19:28]
Jen
Yeah. So in our. For a final thought, member 4S is a nonpartisan, it's a 501C3. We're not religious. You have to be careful when you are tax exempt to not lobby in a certain way and not lobby to a certain amount. So we're not lobbyists, but we want to educate people. We, we're doing advocacy on, on the behalf of children who can't speak for themselves. And we're not saying people who would align with us on most things, these crazy, evil people, because you're making these bills, you're making these claims. I think we, we think there's an element of people not knowing better, not knowing all the facts. And so I know that we want to educate legislators and the people that we can get in touch with. But in the same way, you know, if there's people listening and they're thinking, I disagree with that. And there's something happening in my state I disagree with. What are the things that, that you think people could be doing? Or what's our goal for how we're going to interact with Louisiana as they pursue this?
- [20:28]
Patience Sunny
Yeah. So as a C3, like you mentioned, we are in the business of educating and equipment. So something that we've been doing for a couple months is we've been in very close contact with allied organizations in Louisiana that do have direct lobbying arms and have those relationships with legislators, which is another really important piece. It can be easy for a national level group to sweep in, step on everybody's toes, mess up relationships that exist and not understand some of the situation on the ground. We're very careful to make sure that when we're engaging, going through those state level groups, we're asking them for direction. Hey, who is the best person to talk to about this? And also making sure that they have the materials they need, they have all the research. So I've shared everything that we've written on this bill. I've walked them through. Hey, here's what we're seeing with medical malpractice laws not applying to embryos. Here's what we're seeing with that change in parental rights language, just really walking them through from a children's rights perspective. Here's what we're seeing in this bill, helping them understand it that way and then also getting that information in the hands of legislators as well. So for our listeners, take the information that we've published about this bill and if you're in Louisiana, you can join in helping educate your, your legislators. And also as an individual, there's no limit on the direct lobbying that you can do. Like, individuals can go lobby on their own behalf.
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Jen
They're your representatives. That would be the idea that you're saying, please represent. I want you to know this information so you can make a good decision.
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Patience Sunny
Absolutely. They work for you. So if you're in Louisiana, you care about this issue, you want to get involved, take that information to your legislator, say, hey, I voted you into office. I want you to protect my perspective, protect my interests, and protect the interests of children. If you're not in Louisiana, keep an eye out for similar legislation in your state. Obviously, you're not going to see something that's walking back good laws in a state that doesn't have good laws, but you can start having conversations with people in your community, with your legislators, with policy groups in your state about IVF and the things that are happening in the industry and the ways that the industry is harming not just embryos, but also patients. And to be able to really help people understand the reality of the Alabama situation, what that ruling actually was. And also use our IVF podcast series as a resource as you're doing that to help you get the full picture of what's going on with IVF in the United States.
- [23:01]
Jen
Yeah, that's awesome. Great plug for IVF FYI series that's on YouTube, Spotify, Apple Podcasts. We'd love you to check it out. So many great interviews, great resources there. And we're talking about having a written resource that can go along with that that maybe will be coming out in the fall here. So there's a lot of ways to get informed. And like, Patience is saying you have the right to inform your representatives of the things that are important to you. So we highly recommend that and we would love to hear from you. You can Write us@thembefore us.com if you have any questions about this or IVF in general, but also if you have information about things happening in your state. It would be helpful if we had advocates in every state keeping us appraised because there's only five of us right now and Patience is the one trying to handle all 50 states and 190 something countries. You know I'm just kidding. But eventually we're going to have a resource where we are tracking all of it, but we're going to need help from folks like you. Listening, but Patience. Thanks so much for your work and for following all of this for us.
- [24:05]
Patience Sunny
Absolutely.