The verdict has raised legal issues for potential parents who may depend on in vitro fertilization

By Audrey Elwood, Staff Writer 

The Supreme Court of Alabama has ruled that frozen embryos created and stored for in vitro fertilization (IVF) are children under a state law that allows parents to sue for the wrongful deaths of their minor children. 

The decision, which was issued on Feb. 16, stemmed from a case that was brought to court by three families whose frozen embryos were accidentally dropped by a fertility clinic. They alleged that this action made the embryos unviable, resulting in their destruction.

In 2018, Alabama voters chose to add sections to their constitution, to “protect the rights of an unborn child.” The families’ attorneys argued that the 1872 Wrongful Death of a Minor Act,  which allows parents of a deceased child to recover punitive damages, extends to unborn children. Two lower courts disagreed with this, ruling that embryos outside of the womb do not constitute children, but the state’s supreme court overruled them.

The 8-1 majority of the court found that there was a state legal precedent that “unborn children” are “children” within the 1872 wrongful death law at issue. It also said that any doubt about this issue was removed by the 2018 amendment. The court, whose members are all Republicans or appointed by a Republican governor, found that there was “no exception” to the law for frozen embryos.

Within the court’s opinions Chief Justice Tom Parker used religious beliefs in his argument, stating, “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God…all human beings have the image of God, and their lives cannot be destroyed.”​​

In the wake of the ruling, three IVF providers in Alabama have paused offering services as of Feb. 21. The clinic that was sued, The Center for Reproductive Medicine at Mobile Infirmary, has paused its IVF treatments.

This decision criminalizes the death of a frozen embryo and could increase criminal charges from a malpractice suit to a wrongful death suit, experts have speculated. 

“Why would a doctor put their license on the line by performing something that carries so much risk?” Lindsay Heller, a partner in the Family Law department of Fox Rothschild, said.    

IVF providers across the country are concerned about the implications of the ruling.IVF providers frequently conceive multiple embryos and genetically screen them for disabilities and chance of being carried to term, which this ruling eliminates.

The creation of multiple embryos may still occur, but could raise questions about how clinics or individuals could remove responsibility for the excess embryos.

If someone is to abandon an embryo, without any specificities on what should be done with the embryo, there will be legal implications. Rachel Loftspring, a partner at The Family Law and Fertility Law Group in Cincinnati, said, “When we think about the abandonment of a kid, that’s criminal. Well, what if somebody abandons an embryo?”   

Usually, IVF clinics require patients to sign agreements on what should be done with the embryos in certain cases, like death and divorce. Any agreement that could have destroyed the embryo is now null and void in Alabama.

“The Alabama court’s interpretation of the law could essentially override those agreements, turning property disputes into custody battles,” Heller said.

“If the embryo is successfully implanted, and the life is created, then the other parent theoretically under this ruling could have a child support obligation from birth until that child’s graduation,” she stated.   

This ruling only applies to Alabama state law, and many legal experts believe the decision will not go to the Supreme Court, since it is based on Alabama’s state constitution and states’ highest courts are the ultimate authority on state constitutional issues.

“It sets a really concerning precedent because we see states look around and see what other states are doing and they follow,” Loftspring said.