Alabama Supreme Court: Frozen embryos are 'children' under state law

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File: An embryologist is seen at work at the Virginia Center for Reproductive Medicine, in Reston, Virginia on June 12, 2019. (Photo by IVAN COURONNE/AFP via Getty Images)

MONTGOMERY, Ala. - Frozen embryos created during fertility treatments can be considered children under Alabama state law, the state’s Supreme Court ruled Friday.

The decision, issued in a pair of wrongful death cases brought by couples who had frozen embryos destroyed in an accident at a fertility clinic, brought a rush of warnings from advocates who said it would have sweeping implications for fertility treatments.

Case background

Alabama voters in 2018 agreed to add language to the Alabama Constitution that state policy to recognizes the "rights of unborn children."

Supporters at the time said it would "be a declaration of voters’ beliefs" and would have no impact unless states gain more control over abortion access. States gained control of abortion access in 2022 when the U.S. Supreme Court overturned Roe vs. Wade.

Critics at the time said the constitutional change would have broad ramifications for civil and criminal law beyond abortion access and that it was essentially a "personhood" measure that would establish constitutional rights for fertilized eggs.

The plaintiffs in this case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples had paid to keep others frozen in a storage facility at the Mobile Infirmary Medical Center. A patient wandered into the area and removed several embryos, dropping them on the floor and "killing them," the ruling said.

What did Friday’s ruling say?

The justices, citing that anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child "applies to all unborn children, regardless of their location."

"Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics," Justice Jay Mitchell wrote in the majority ruling.

Mitchell said the court had previously ruled that fetuses killed while a woman is pregnant are covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes "extrauterine children from the Act’s coverage."

Chief Justice Tom Parker issued a concurring opinion that quoted the Bible as he discussed the meaning of the phrase "the sanctity of unborn life" in the Alabama Constitution.

"Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory," Parker said.

Dissenting opinion

Justice Greg Cook, who filed the only full dissent to the majority opinion, said the 1872 law did not define "minor child" and was being stretched from the original intent to cover frozen embryos.

"Moreover, there are other significant reasons to be concerned about the main opinion’s holding. No court — anywhere in the country — has reached the conclusion the main opinion reaches," he wrote, adding the ruling "almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama."

Possible impacts

It was not immediately clear what impact the ruling would have on clients of existing fertility clinics, while a brief in the case filed last year by the Medical Association of the State of Alabama warned that clinics might be forced to close, AL.com reported at the time.

"The potential detrimental impact on IVF treatment in Alabama cannot be overstated," the brief stated. "The increased exposure to wrongful death liability as advocated by the Appellants would – at best – substantially increase the costs associated with IVF. More ominously, the increased risk of legal exposure might result in Alabama’s fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine."

Reports from Alabama on Tuesday suggested at least some doctors were considering moving their clinics out of the state.

A statement from RESOLVE: The National Infertility Association warned of wide implications from the ruling.

"Alabama’s Supreme Court ruling is a terrifying development for the 1 in 6 people impacted by infertility who need in-vitro fertilization to build their families," the statement read. "RESOLVE mourns with the couples who lost their embryos as we know how many challenges people with infertility face when trying to build their family. Unfortunately, this anti-family ruling will likely have devastating consequences, including impacting the standard of care provided by the state’s five fertility clinics."

Associated Press reporter Kim Chandler contributed.