In a first-in-the-nation decision, the Alabama Supreme Court on February 16, 2024 issued a ruling declaring frozen embryos in that state to be “unborn children” for purposes of civil liability under Alabama’s wrongful death statute. The case, argued in September (see LS Oct. 2023), involved embryos destroyed at a hospital-based Alabama IVF clinic after an unrelated inpatient accessed the clinic storage tanks through an unsecured door, and removed and dropped three patients’ embryos. In a lengthy 131 page opinion including majority and concurring opinions that were heavily reliant on religion and Alabama’s constitutional provisions that life begins at fertilization, disregarded or re-interpreted Alabama legal precedent, and made several misstatements about IVF/ART practices, the Court held that the Alabama’s civil Wrongful Death of a Minor Act applies to all unborn children, regardless of their location and without limitation, expressly including in vitro cryopreserved embryos. The court framed the question in the first three pages of its opinion, predicting it’s ruling, as:

The central question presented in these consolidated appeals, which involve the death of embryos kept is a cryogenic nursery, is whether the [wrongful death] Act contains an unwritten exception to that ruled for extrauterine children– that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children regardless of their location.

In a lengthy dissent that cogently disagreed with the analysis and reasoning of the majority and predicted a dramatic impact and reduction in IVF and ART practices in that state, Justice Cook stated that “...the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama.” Less than a week after the decision was issued, two Alabama  IVF clinics have announced they have paused several aspects of their operations.

This column breaks down some of the key points of the decision, and outlines some of the anticipated implications for ART providers and patients both in and outside of Alabama.
 

The Facts:

Three patient couples at a hospital-based IVF clinic sued after a psychiatric inpatient gained access to the cryostorage area through an unsecured door and removed embryos which he then dropped after burning his hands, rendering the embryos unusable.[1]  The three patient couples sued the IVF clinic, resulting in consolidated lawsuits that ultimately made their way to the Alabama Supreme Court.

At trial, the couples argued that the clinic and hospital were civilly liable under Alabama’s Wrongful Death of a Minor Act (“the Act”), a civil law that allows for both compensatory and punitive damages, and that in the alternative, the clinic was liable under claims of negligence and wantonness, for which they sought compensatory damages, including damages for mental anguish and emotional distress. The trial courts dismissed the wrongful death claims on the basis that the Act did not include in vitro embryos, and dismissed the claims for negligence and wantonness, finding that Alabama law prevented plaintiffs from recovering compensatory damages for loss of human life. The trial court found that the families could recover for breach of contract, so that they would not be left without some sort of legal recourse for the harm that they suffered.

The families appealed, and the Supreme Court of Alabama reviewed the case “de novo,”(meaning it  did not need to defer to the trial court’s decision, but would review the case as if it were the first court hearing it), and ruled that in vitro fertilized embryos were “unborn children,” and the plaintiffs entitled to both compensatory and punitive relief under the Act..
 

The Decision:

In reaching its decision, the Court found that the plain meaning of “minor” in the Act (originally enacted in 1872) included all children, born and unborn, regardless of their location in utero or not, and relied on this premise to determine that embryos were children since the Act did not explicitly exclude them. The dissent argued that Alabama law, legislative intent, and previous Court precedent all made clear that an “unborn child” does not include embryos, and that the Court had misstated both the science and practice of IVF and offered misleading hypothetical scenarios in supporting its conclusions.

The majority opinion, which controls the case and creates binding precedent for Alabama, was joined by six justices in full (some of whom also wrote concurring opinions with additional views; concurring opinions are not binding, but can be helpful in suggesting persuasive legal arguments and reasoning for future cases).. The Chief Justice (Parker) wrote a particularly lengthy, detailed, and religion-laden concurring opinion. One justice concurred in part and dissented in part. Only one justice (Cook) dissented in full.[2]

The Majority Decision and its three rationales:

The majority decision made two essential findings: 1) the trial court was incorrect in dismissing the claims for wrongful death on the basis that in vitro embryos are not included in the Alabama Wrongful Death of a Minor Act; and 2) the trial court was correct in dismissing the negligence claims, since these were only alternate claims to be considered if the court found the families unable to recover under  the wrongful death statute.  It based its decision on the following three reasons:

Does the Wrongful Death of a Minor Act Apply to in vitro Embryos?

This finding relied on the court’s interpretation of the text of the Act that was first passed in 1872, over 100 years before the advent of IVF.  The purpose of the law was to create a new civil legal remedy for parents of a deceased minor child to seek punitive damages for the death of their child caused by the wrongful act, omission, or negligence of any person.  The plaintiffs argued that the Act did not define “minor” or “child”, and that in vitro embryos should not be excluded from this act simply because of their “location outside of the womb”. The court accepted this argument, and found that “minor child” should be interpreted as any unborn or recently born “individual member of the human species, from fertilization until the age of majority, and that nothing about the Act narrows that definition to unborn children who are physically in utero." Even if there had been ambiguity about the definition, the Court stated the outcome (finding that the Act included in vitro embryos), would be the same, based on the state’s policy to resolve disputes in the way that is most protective to the unborn because Alabama’s 2022 Constitution "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." 

Thus the court agreed with the plaintiffs, finding that unborn children are "children" under the Act, “without exception based on developmental stage, physical location, or any other ancillary characteristics.”

One opinion (Justice Mendheim who concurred only in the result of the judgment and not in its reasoning) made clear the illogic of this finding for several reasons. First, he argued that the majority constructed a circular argument, by starting with the unsubstantiated premise that embryos are children. Second, he found the assertion that “the legal conclusion is "clear" and "black-letter law" problematic because when the Wrongful Death of a Minor Act was first enacted in 1872, and for 100 years thereafter, IVF was not even a scientific possibility.”

In his dissent, Justice Cook noted that, “[t]here is no dispute in these cases about when life begins. All parties agree on that issue, and noted that at oral argument the defendants’ counsel conceded this point in oral argument: “...I think that the… embryo is a life, but the issue today is whether an embryo is a child protected under the [Wrongful Death Act.”

Justice Cook also emphasized, however, that: “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry…”

Does Consistency between Criminal and Civil Laws require creating an Exception for Extrauterine Children?

The defendants argued that previous decisions by the court created a requirement for consistency between civil and criminal laws in the state, and who each of these laws recognize as “people”. They argued that because the state’s criminal homicide laws, including its “Brody Act” explicitly require a fetus be “in utero,” IVF embryos cannot be considered children under the civil wrongful death act. The majority disagreed, ruling that criminal-homicide law “provides a floor for the definition of personhood in wrongful-death actions, not a ceiling.”

In a footnote, the majority added that this illustrates why civil liability for the mishandling of embryos may not necessarily raise the possibility of criminal liability for the same conduct.

The dissent criticized the majority for overlooking the “in utero” language used not only in the criminal Brody Act enacted in 2006 but also the civil Human Protection Act passed in 2019. It pointed out the majority also ignored the legislative history (recorded statements during debate over proposed laws) of the Human Protection Act, which included discussion that explicitly raised and rejected the inclusion of IVF embryos in that civil law.

Should Public Policy Concerns and Impacts of this Decision on IVF Influence the Court’s Decision?

The majority acknowledged the concerns presented by the medical community and the defendants in their briefs, namely that IVF in the state would become prohibitively expensive and risky, but decided that, “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.” While the Court called on the legislature to make any policy changes, it also warned that any future legislation must comport with the Alabama Constitution, by protecting “unborn children” both in and ex utero–  a seeming “Catch-22” for any attempt to enact corrective legislation excluding IVF embryos under Alabama law.

What happens next?

The case will be remanded back to the trial court both for the purposes of determining any compensatory and punitive damages and to consider any affirmative defenses the clinic may have, including waiver and estoppel based on the clinic contracts the patients had signed.  The court noted the clinic claimed at oral argument-- but had not argued to the trial court earlier–  that the couples had treated the embryos as “nonhuman property” in making’ various disposition choices in their contracts (which included variable choices of the couples to destroy their embryos after five years and to donate excess or abnormal embryos for medical research and then discard). The clinic argued those actions were “fundamentally incompatible with wrongful-death claims” so that the patients might be “either contractually or equitably barred from pursuing wrongful-death claims.”  Given  the Alabama Supreme Court’s unequivocal ruling that embryos are “unborn children” under Alabama law, those arguments may be more difficult to make, but the court declined to resolve the issues, which they said should first be addressed by the trial court on remand. Although an appeal to the US Supreme Court is also available, given the decision is based on state law and the risks of such an appeal particularly in light of the current make-up of the Supreme Court (as discussed in LS 10/23 column), it is unlikely to be a route that will be considered advisable. 

Beyond the ruling: Major concerns raised by the case in and outside of Alabama

Misrepresentations over the state of the science and IVF standards of care:  Beyond the widespread and concerning implications of this decision on IVF practice in Alabama and across the country, the decision contains a number of scientific and legal inaccuracies.

The majority and concurring opinions take a number of positions on the way it believes IVF is currently practiced in Alabama, and ways in which it could be “improved.” Ignoring ASRM professional guidelines and standard of care regarding single embryo transfer, Chief Justice Parker notes in his concurring opinion that,  “[a]lthough it is for the Legislature to decide how to address this issue, I note briefly that many other Westernized countries have adopted IVF practices or regulations that allow IVF to continue while drastically reducing the chances of embryos being killed, whether in the creation process, the implantation process, the freezing process, or by willful killing when they become inconvenient.” He argues that in Alabama and the US more broadly there is a “prevailing practice of creating and transferring at once many embryos that have little chance of survival and then throwing embryos away after a while.” He also inaccurately stated that both Australia and New Zealand are legally required to fertilize one egg at a time, and thus have fewer frozen embryos.

Misrepresentation and misleading hypotheticals about imminent artificial womb options:  The majority attempted to bolster its arguments by suggesting their view of IVF embryos is essential to ensure protections for future children brought to term in artificial wombs, and that, while “practical limitations on developing extrauterine embryos to term…those limitations are shrinking each year due to ‘technological advances’”.  This insinuation is simply inaccurate, given the widely recognized scientific, factual and legal barriers, and the dissent rightly acknowledged that this argument is a pure hypothetical designed to be deliberately inflammatory.

Reliance on Religion and Religious sources: The numerous and remarkably explicit references to Biblical and other religious sources demonstrate how prevalent and commonplace reliance on religious views have become in post-Dobbs court decisions involving science, medicine and access to medical care. As examples, Justice Parker’s concurrence states:

the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

Minimizing or ignoring ramifications for IVF clinics and patients: The Court acknowledged the consequences  for IVF and determined that it wasn’t the Court’s role to consider them. The dissenting opinion from Justice Cook most accurately captures the true ramifications of this decision, and the possibility that it may make liability for clinics too great, and severely limit the ability of clinics in Alabama to continue providing services to their patients. Among the most concerning consequences, he recognizes that, "[n]o 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."

Already reports are surfacing of: Alabama IVF clinics ceasing, “pausing’ or altering standard of care treatment; concerns about if and how clinics and physician can advise their patients regarding embryo dispositions, including discard or moving out-of-state; potential impacts on divorcing couples’ decision-making over excess embryos; proceeding with PGT given at least potential risks to embryos; and more. Novel unanswered questions will continue to surface including the impact on embryos found to have genetic anomalies following PGT that does continue to be performed, whether or to what extent potential liability under civil laws can be limited or prevented by legal waivers in embryo dispositional agreements or other documentation involving procedures on patients and/or embryos or under principles of “estoppel,” and whether so-called “compassionate transfers” or shipping embryos out-of-state for the purpose of ultimate destruction/non-viability are permitted.

What the decision does NOT do:  It is also important to understand what the Alabama Supreme Court did not do. First, the ruling only applies to Alabama and its clinics and patients. Second, the Wrongful Death of a Minor Act is a civil law, not a criminal law, so any violations of that law will not involve criminal penalties- and it is worth noting that while criminal prosecution under some states’ laws (or by some zealous prosecutors) is certainly a possibility, media reporting of feared manslaughter or homicide charges for Alabama providers stemming directly from this decision under its civil Wrongful Death Act would seem to be misplaced given the Court’s express limitations on its ruling.  Nonetheless, litigators and courts  often do apply a statutory definition to other statutes that do not have one,  raising legitimate concerns for potential criminal liability over aspects of IVF practice, including mishandling of embryos or routine protocols involving embryo dispositions. Third, while the case does not prohibit the practice of IVF or cryopreservation in Alabama, it does open up professionals– including physicians and embryologists, to significant potential liabilities and penalties that did not previously exist in that state.
 

CONCLUSION (for now):

While some politicians and commentators have argued that in the Post-Dobbs landscape, ARTs will not be targeted, this decision demonstrates that the changing legal landscape now includes direct attacks on ARTs.  If the history of the anti-abortion movement in the United States can teach us anything, it is that this decision may inspire other states, and while this case is the first of its kind, is unlikely to be the last. 

Ironically, as the dissent points out, the plaintiffs were all successful IVF parents who were not seeking the broad ruling the Alabama Supreme Court delivered. As the dissent noted: “these cases concern nothing more than an attempt to design a method of obtaining punitive damages under Alabama's Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, by concluding that frozen embryos, negligently destroyed, are entitled to the same protections as a fetus inside a mother's womb.” In oral arguments, the plaintiffs’ attorneys stated that they came before the court “advocating on behalf of plaintiffs who are supporters of in vitro fertilization. It worked for them. They have two beautiful children in each family because of in vitro fertilization. The notion that they would do anything to hinder or impair the right or access to IVF therapy is flat wrong." Whether waivers or estoppel principles, together with carefully drafted IVF treatment consents and embryo disposition contractual agreements will provide some protections will likely depend on each state’s laws.

In the post-Dobbs landscape, however, with courts being more and more willing to take extreme positions to limit access to sexual and reproductive healthcare, these cases can have unintended, far-reaching ramifications. While the plaintiffs claimed not to be seeking additional limitations on IVF, their case came before a court motivated by a religious belief that embryos should never be destroyed, which seized the opportunity to drastically limit access to reproductive care for patients.

Among the many “take-aways” of the case will be the potential wide-spread consequences in the currently politically charged post-Dobbs environment. While the opinion strictly applies only to Alabama, for states with anti-abortion laws that define life beginning at fertilization, this case offers a roadmap for advancing similar arguments over IVF embryos and ART practices to the detriment of providers, patients, and the families they all seek to create.

Read the full decision here:

https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/c93db586-ec08-4f14-a6ba-a149967e68b0/docketentrydocuments/bb88f2bf-19ca-498f-9fe2-f754d36c0ff2

<sub>*Francesca Nardi, JD, LL.M. is an Associate at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.

[1] James LePage and Emily LePage, individually and as parents and next friends of two deceased LePage embryos, Embryo A and Embryo B; and William Tripp Fonde and Caroline Fonde, individually and as parents and next friends of two deceased Fonde embryos, Embryo C and Embryo D V. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center.

Felicia Burdick-Aysenne and Scott Aysenne, in their individual capacities and as parents and next friend of Baby Aysenne, deceased embryo/minor v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center.

NOTE*** The three  cases were consolidated on appeal, meaning the court chose to decide on them together as it found the facts and legal questions were sufficiently similar.
 
[2] Majority decision authored by Justice Mitchell. Wise and Bryan, JJ., concur. Parker, C.J., concurs specially, with opinion. Shaw, J., concurs specially, with opinion, which Stewart, J., joins. Mendheim, J., concurs in the result, with opinion. Sellers, J., concurs in the result in part and dissents in part, with opinion. Cook, J., dissents, with opinion.</sub>