Alabama Supreme Court Holds Frozen Embryos Are Children Under Wrongful Death Statute
- February 23, 2024
The Alabama Supreme Court held February 16 that frozen embryos are “extrauterine children” under the state’s Wrongful Death of a Minor Act (Act) in a decision sparking widespread concerns about the implications for fertility treatments in the state.
The consolidated action was brought by several couples (plaintiffs) who went to the Center for Reproductive Medicine, P.C. (Center) for in vitro fertilization (IVF). Embryos that were not implanted were stored within the same building as a local hospital. In December 2020, a hospital patient wandered into the Center’s fertility clinic and cryogenic nursery, removing the frozen embryos and dropping them when the subzero temperatures freeze-burned the patient’s hand.
Plaintiffs sued the Center and hospital under the Act, which allows parents of a deceased child to recover damages in a civil action for their child’s death. The trial court dismissed the actions, finding the frozen embryos did not fit the definition of a “person” or “child” under the Act.
The Alabama Supreme Court reversed. The opinion noted that the state high court has long held that under the Act, unborn children are “children,” which is not defined under the 1872 law. The consolidated action, according to the high court, raised the question of whether the Act “contains an unwritten exception to that rule for extrauterine children” located outside of the uterus.
Answering that question in the negative, the high court held that “[u]nborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics."
“Nothing about the Act narrows that definition to unborn children who are physically ‘in utero.’” The high court added.
In support of its conclusion, the high court also cited a 2018 ballot initiative that added language to the Alabama Constitution affirming the state’s public policy “to ensure the protection of the rights of the unborn child.” The state has a strict abortion ban in place with limited exceptions.
Defendants argued that extrauterine embryos are not within the class of persons protected by the state’s criminal-homicide laws and therefore could not be protected under the Act. But defendants were mistaken that precedent requires “one-to-one congruity” between criminal-homicide laws and civil wrongful death statutes, the high court said.
“[E]ven if it is true, as the defendants argue, that individuals cannot be convicted of criminal homicide for causing the death of extrauterine embryos (a question we have no occasion to reach), it would not follow that they must also be immune from civil liability for the same conduct,” the high court wrote.
The high court also declined to address defendants’ public policy arguments that treating embryos as children under the Act would "substantially increase the cost of IVF in Alabama" and could make cryogenic preservation onerous. “While we appreciate the defendants' concerns, these types of policy-focused arguments belong before the Legislature, not this Court,” the opinion said.
Defendants noted that all the plaintiffs signed contracts with the Center allowing any remaining stored embryos to be discarded or donated to research after a certain period of time. These provisions, defendants argued, were incompatible with plaintiffs' wrongful-death claims. But the high court said the trial court could address those outstanding issues on remand.
“No court—anywhere in the country—has reached the conclusion the main opinion reaches,” the lone dissenting opinion noted. “And, the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.”
Shortly after the decision, it was widely reported that the University of Alabama at Birmingham health system and two other fertility clinics suspended IVF treatments while assessing the impact of the high court’s ruling.
In a statement, the American Society of Reproductive Medicine condemned the decision, saying it “flies in the face of medical reality and the needs of the citizens of Alabama.”
“If the policy outcomes mandated under this decision stand, the consequences will be profound. Modern fertility care will be unavailable to the people of Alabama,” according to the statement.
The White House also spoke out against the ruling. “[T]his is exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make,” White House Press Secretary Karine Jean-Pierre said February 20.
LePage v. Ctr. v. Reproductive Med. P.C., No. SC-2022-0515 (Ala. Feb. 16, 2024).