Patient advocates fear that a Friday ruling by the Alabama Supreme Court stating that frozen embryos outside the womb are “children” could be the end for in vitro fertilization (IVF) in the state.

In a majority opinion, Justice Jay Mitchell wrote that there was no exception for frozen embryos under an 1872 law allowing civil lawsuits for the wrongful death of children, or under a 2018 state constitutional amendment that required the state to “ensure the protection of the rights of the unborn child.”

“The upshot here is that the phrase ‘minor child’ means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: ‘an unborn or recently born’ individual member of the human species, from fertilization until the age of majority,” Mitchell wrote. “Nothing about the Act narrows that definition to unborn children who are physically ‘in utero.’ Instead, the Act provides a cause of action for the death of any ‘minor child,’ without exception or limitation.”

The decision could leave fertility clinics vulnerable to lawsuits over frozen embryos, and could hamper access to fertility treatments.

Barbara Collura, CEO of RESOLVE: The National Infertility Association, said Monday she’s concerned that because the decision is based on a “wrongful death” lawsuit, that it could prevent people in the state from attempting IVF treatment.

“We’re going to have a situation where people being able to get care for their infertility is going to be so much harder in Alabama, and not because we’re putting more protections in place, because the way the court has decided the status of a fertilized egg,” Collura said.

The lawsuit involved embryos stored at a fertility clinic in Mobile. According to the opinion, in 2020 a patient “managed to wander” into the fertility clinic and remove several frozen embryos from the nursery, according to the lawsuit. The patient dropped the frozen embryos to the floor, resulting in their loss.

Plaintiffs in the case, who had successfully used embryos stored at the facility, sued the clinic under the state’s Wrongful Death of A Child Act. A lower court, siding with the clinic, dismissed the suit, ruling that the embryos did not fit definitions of “person” or “child” and could not lead to a wrongful death claim.

Mitchell, however, wrote that the clinic was asking the court “to recognize an unwritten exception for extrauterine children in the wrongful-death context” and that the law “applies to all children, born and unborn, without limitation.”

“It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy,” Mitchell wrote. “That is especially true where, as here, the people of this state have adopted a constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

Chief Justice Tom Parker, concurring with the opinion, wrote “that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” which he argued was set in policy when Alabama voters approved the 2018 amendment.

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness,” he wrote in his concurring opinion.

Justice Greg Cook, who filed the only full dissent, wrote that the Wrongful Death Act does not define the term ‘minor child,’ and that its meaning has remained unchanged since it was first written in 1872. Cook also noted a 1926 opinion from the Alabama Supreme Court that held that the law “did not permit recovery for injuries during pregnancy that resulted in the death of the fetus.”

“There is no doubt that the common law did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability,” Cook wrote. “In fact, for 100 years after the passage of the Wrongful Death Act, our case law did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a ‘minor child’ who could be killed.”

Consequences

Collura said the decision could have implications nationwide, and that currently there are more questions than answers. She asked what would happen if an embryo stopped developing and whether that would be considered wrongful death.

Beyond IVF, Collura said a “whole host” of fertility treatment is in question if a fertilized egg is to be considered a person.

“In other words, the rights of those embryos now are no longer in the hands of the people who created them,” Collura said.

Robin Marty, executive director of the West Alabama Women’s Center, is also afraid this could be the end of IVF treatment in Alabama, but said that it follows a trend of Alabama officials minimizing the challenges pregnant people face.

She said becoming pregnant through IVF is a monthslong process and it is standard to have multiple fertilized eggs. Families can freeze fertilized eggs not used.

“The ways that we keep diminishing people who are capable of becoming pregnant and their pain and their suffering and their physical health, in order to keep up this continuing line of ‘fertilized eggs must be protected at all cost.’ It’s horrifying down here,” Marty said.

Stephen Stetson, director of Planned Parenthood Alabama, said that granting legal personhood to frozen embryos is “extremely alarming,” adding that this sets a dangerous precedent for people in Alabama who are “trying to control their bodies, access health care and plan their families.”

“These kinds of decisions represent judicial overreach and are part of a concerted long-term plan to justify government intervention in people’s bodies,” he said.

Cook, writing in dissent, asked the Alabama Legislature to address the issue.

“The main opinion’s holding will mean that the creation of frozen embryos will end in Alabama,” he wrote. “No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.”

Alabama Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: [email protected]. Follow Alabama Reflector on Facebook and Twitter.