Could an IVF ruling like Alabama's happen in Ohio?

COLUMBUS, Ohio (WCMH) – Three in-vitro fertilization, or IVF, clinics in Alabama paused services after the state supreme court ruled frozen embryos are considered children. 

NBC4 is taking a look at whether something similar could happen in Ohio. Back in November, Ohio voters approved an overarching reproductive amendment that not only addressed abortion, but also, fertility treatments like IVF. 

Professor of law at Capital University Law School Dan Kobil said that adds several protections. A majority of Ohio Supreme Court Justices oppose the amendment; they are ultimately charged with interpreting the language, but Kobil said it is straightforward. 

“I can’t see how the Ohio Supreme Court could logically look at the reproductive freedom amendment and say, at the same time, that the constitution believes that any fertilized embryo is a person,” he said. “I doubt that the Ohio Supreme Court could do that, but at the end, I am not a fortune teller, so I can’t guarantee that.” 

Kobil said the language is mostly direct, some things are still up for interpretation, like a wrongful death suit for a frozen embryo. 

“If a clinic were negligent in storing embryos and people wanted to sue in that negligence, I don’t think there would be anything in Ohio’s reproductive freedom amendment that would prevent that,” Kobilsaid. 

In Ohio, there have already been lawsuits related to that. Back in 2019, 150 families settled lawsuits with university hospitals in Cleveland, after a faulty freezer destroyed hundreds of eggs and embryos. 

But, Ohio and Alabama do have a major difference: in Alabama, their constitution defines personhood at conception, whereas Ohio’s newly enacted amendment is on the other side of the debate. 

“You have very different constitutions, each of them valuing something different,” Kobil said. “And so that’s why I think you have very, very different outcomes with regard to IVF in Ohio and Alabama.” 

At the Ohio Statehouse, in past years, there have been efforts to define personhood at the point of conception, but with the amendment in place, lawmakers cannot preempt the constitution. 

“To my knowledge, there’s no current legislative activity,” Ohio Senate President Matt Huffman (R-Lima) said.

So, as far as the personhood of an embryo goes, Kobil said, likely, the only way to pre-empt the state constitution, other than passing another amendment, is at the federal level. 125 congressmen signed on to a “Life at Conception Act.”

“If they do enact a law that said that, that would have huge implications,” Kobil said. “That, to me, seems to be a greater likelihood that the Ohio Supreme Court doing that.” 

Kobil said the November 2024 election could determine the political make-up of congress and make the “Life at Conception Act” more, or less likely to pass, depending on the party in power. 

“The 2024 federal election will be crucial for ensuring that reproductive rights, at least in Ohio, continue along the lines that voters decided last fall,” he said.