Supreme Court Declines Review of Alabama Decision That Frozen Embryos Are Children Under Wrongful Death Statute
- October 11, 2024
The Supreme Court let stand October 7 an Alabama Supreme Court decision that frozen embryos are “extrauterine children” under the state’s Wrongful Death of a Minor Act (Act).
The state high court’s holding in LePage v. Ctr. v. Reproductive Med. P.C., No. SC-2022-0515 (Ala. Feb. 16, 2024), sparked widespread concerns about the implications for fertility treatments in the state. In March, the state enacted legislation aimed at reassuring providers and patients that they would not face legal liability for in vitro fertilization (IVF) treatments following the state supreme court ruling.
The legislation (SB 159), which was characterized as a “short-term measure,” provides civil and criminal immunity for “death or damage to an embryo” related to IVF. It also provides criminal immunity to manufacturers of goods used to facilitate IVF.
The consolidated action was brought by several couples (plaintiffs) who went to the Center for Reproductive Medicine, P.C. (Center) for 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.
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, holding “[u]nborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics."
The Center and Mobile Infirmary Association asked the U.S. Supreme Court to consider whether the ruling’s break with “over 150 years” of the wrongful death statute’s interpretive history and commonsense understanding of the law violated their due process and fair notice rights under the Fourteenth Amendment of the U.S. Constitution.
The groups’ petition also argued that the Alabama Supreme Court failed to determine whether plaintiffs had standing to bring the action before reaching the merits. “Instead, that court forged ahead and introduced a troubling new legal regime for which scores of Alabamians ‘had neither input, nor redress, nor a hearing,’ yet to which those citizens remain bound, contrary to the fundamental due process protections guaranteed by the Fourteenth Amendment.”
Ctr. for Reproductive Med., P.C. v. Burdick-Aysenne, No. 24-127 (U.S. petition for cert. denied, Oct. 7, 2024).