The Alabama Supreme Court ruled Friday that frozen embryos should be considered “children,” in a case that some fertility healthcare advocates are calling “a terrifying development,” with “devastating consequences” for people needing fertility treatments like in vitro fertilization (IVF). My spouse and I created our family via IVF, so this one’s personal to me.
The case involved three couples who had undergone IVF treatments at the Center for Reproductive Medicine, and whose extra frozen embryos were being held at the Mobile Infirmary Medical Center, reports AL.com. Another patient at the center got access to the specimens via an unsecured door and dropped them, destroying the embryos. The couples wanted to sue both the medical center and the fertility clinic for wrongful death, but the institutions claimed that Alabama’s Wrongful Death of a Minor Act does not cover embryos outside the womb. A lower court ruled in 2022 to dismiss the case, but the Alabama Supreme Court reversed the ruling.
“The Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation,” wrote Justice Jay Mitchell. “All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a ‘human life.'” The point of disagreement, he said, was “whether there exists an unwritten exception to that rule for unborn children who are not physically located ‘in utero’—that is, inside a biological uterus—at the time they are killed.” The court’s decision affirms that there is not such an exception.
Among other arguments, Mitchell pointed to the “Sanctity of Unborn Life” section of the Alabama Constitution, which “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.”
Chief Justice Tom Parker went further in a concurring opinion, citing “the theologically based view of the sanctity of life” and a host of Christian thinkers, including Saints Augustine and Thomas Aquinas, writing:
The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: “Before I formed you in the womb I knew you, Before you were born I sanctified you.” Jeremiah 1:5 (NKJV 1982).
The Medical Association of the State of Alabama, the state’s professional association for some 7,000 physicians, however, warned in an amicus brief in the case last fall that if the court found in favor of the plaintiffs, “The potential detrimental impact on IVF treatment in Alabama cannot be overstated.” They explained, “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.”
Paula Amato, MD, president of the American Society of Reproductive Medicine, said in a statement yesterday:
In its medically and scientifically unfounded decision, the court held that a fertilized frozen egg in a fertility clinic freezer should be treated as the legal equivalent of an existent child or a fetus gestating in a womb. The eight members of the court who approved this decision may view these things as the same, but science and everyday common sense tell us they are not….
By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama. No healthcare provider will be willing to provide treatments if those treatments may lead to civil or criminal charges.
And RESOLVE, the National Infertility Association, said in a statement today:
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.
RESOLVE, the National Infertility Association
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. This anti-family ruling will likely have devastating consequences, including impacting the standard of care provided by the state’s five fertility clinics. This new legal framework may make it impossible to offer services like IVF, a standard medical treatment for infertility. It also remains unclear what this decision means for families who currently have embryos stored at these clinics.
One thing is certain: this ruling has profound implications far beyond Alabama’s borders. Every American who wants or needs access to family building options like IVF should be deeply concerned about this development and the precedent it will set across the country.
IVF is a critical tool in fertility care. For LGBTQ and non-LGBTQ families alike, it can help when a person has fertility challenges. It also allows for the possibility of reciprocal IVF, using one person’s egg and the other’s womb, as my spouse and I did. While we chose to create our family this way from the start, sometimes RIVF also becomes an option after infertility for many couples with two female reproductive systems. Additionally, IVF is needed for gestational surrogacy, when one person’s egg is fertilized and then gestated in another’s womb.
A federal bill introduced last month would make access to IVF a statutory right, and comes none too soon—though a right to IVF is useless without providers willing to provide it. See that post for ways to help support the legislation. You can also sign up for RESOLVE’s Advocacy Network for ways to get informed of and involved in various policy issues related to fertility care.
Remember, though: While the Alabama decision is frightening, IVF currently remains available and legal all across the U.S. You may wish, however, to read my interview with two leading LGBTQ family law experts on “How LGBTQ Parents Can Protect Their Families After Dobbs,” the U.S. Supreme Court that overturned the right to abortion and opened the door to these challenges to fertility care. Stay tuned to Mombian, too; I’ll continue reporting on any related developments and their implications for LGBTQ families.