In Vitro Embryos Are Children, Alabama Supreme Court Says (3)

The Alabama Supreme Court gave abortion foes a victory with a unique decision that recognizes unimplanted human embryos as children.

The decision could lead to in vitro fertilization “deserts” throughout the country, the same way abortion deserts multiplied following the US Supreme Court’s decision to overturn Roe v. Wade, a reproductive rights advocate said.

Human life begins at fertilization and unborn children are people for purposes of the state’s wrongful death law, regardless of viability, the Alabama Supreme Court said Feb. 16. The destruction of the embryos can support a wrongful death lawsuit, it said.

The decision, the “most extreme” state court ruling on personhood so far, will make IVF virtually inaccessible in Alabama and opens the door to anti-abortion groups pushing the same agenda in other states, Katie O’Connor, director of federal abortion policy at the National Women’s Law Center in Washington, said in an interview Tuesday. NWLC advocates for gender justice in all areas relevant to women and girls.

“More and more” anti-abortion advocates are likely to “pick up on this trend” and make the same argument in abortion-hostile states at the first opportunity, O’Connor said. And it confirms that doing away with abortion was never the endgame—the same forces are going after assisted reproduction and contraception, she said.

‘Tremendous Victory’

Denise Burke, senior counsel with the pro-Christian law firm Alliance Defending Freedom, called the decision “a tremendous victory for life.” The state court “correctly found that Alabama law recognizes the fundamental truth” that “all human life is valuable from the moment of conception,” she said in a statement emailed to Bloomberg Law on Tuesday.

“ADF hopes that this ruling encourages voters, lawmakers, and courts to recognize that life is a human right, no matter the circumstances,” Burke said.

Danielle Pimentel, policy counsel at the anti-abortion group Americans United for Life, called the decision “a step in the right direction toward ensuring that all preborn children are equally protected under the law.”

‘Bad Policy’

“Bad policy in one state leads to bad policy in others,” Molly Meegan, chief legal officer at the American College of Obstetricians & Gynecologists, said Tuesday.

The group has filed amicus briefs supporting abortion access in other cases.

Other states have been “flirting” with the idea of fetal personhood for a long time, Meegan said. Alabama’s decision could provide them with the impetus to adopt the policy, either through laws or court decisions, she said.

Meegan believes access to IVF will end in Alabama. The “stakes are too high.”

Providers face serious penalties for anything that could go wrong, and patients won’t be able to afford the procedure, she said. IVF is already very expensive, and providers will have to perform one procedure at a time, treating each embryo as a person.

Wrongful Death

The decision greenlights wrongful death lawsuits by two sets of parents whose in vitro embryos expired when a hospital patient wandered into an adjacent cryogenic nursery where they were awaiting implantation, removed several embryos, and dropped them on the floor. The parents sued the Center for Reproductive Medicine PC, alleging that it breached a duty to keep the cryogenic nursery secured and monitored at all times, Justice Jay Mitchell said in the majority opinion.

Alabama’s wrongful death act allows parents of deceased children to recover punitive damages for their children’s deaths. Unborn children have long been included in that provision, the court said.

The question here was a narrow one—"whether the Act contains an unwritten exception to that rule for extrauterine children.” Eight of nine state justices said it did not.

The law creates a cause of action when “the death of a minor child is caused by the wrongful act, omission, or negligence of any person,” provided that they do so within six months of the child’s passing.” It doesn’t define “child,” but the state’s top court has interpreted it to include an unborn child, regardless of its gestational stage or whether it could live outside the womb, the court said.

There’s no exception to that rule for unborn children not physically located in a uterus at the time they’re killed, the court said. Neither the Wrongful Death Act’s text nor Alabama precedent excludes “in vitro” children from the statute’s coverage, it said.

Additionally, an Alabama constitutional provision titled “Sanctity of Unborn Life” declares Alabama’s public policy to include protecting the rights of unborn children, the court said.

“When it comes to the Wrongful Death of a Minor Act, that means coming down on the side of including, rather than excluding, children who have not yet been born,” Mitchell said.

The American Society for Reproductive Medicine also condemned the decision. The opinion “flies in the face of medical reality and the needs of the citizens of Alabama,” the group’s president, physician Paula Amato, said in a statement on its website.

Justices Alisa Kelli Wise and Tommy Bryan joined. Chief Justice Tom Parker and Justice Greg Shaw, joined by Justice Sarah H. Stewart, concurred.

Justice Brady E. Mendheim Jr. concurred in the result, but expressed “misgivings” about its reasoning. IVF wasn’t a possibility when the law was enacted in the late 1800s, so the phrase “unborn child” could only have been understood to apply to a child in the womb, he said.

In the only dissenting opinion, Justice Greg Cook said the majority had expanded the reach of the Wrongful Death Act in a way that should have been left to the state’s lawmakers.

Cunningham Bounds represents the LePage and Fonde plaintiffs. Long & Long represents the Aysenne plaintiffs. Frazer Greene represents the Center. Starnes Davis Florie LLP represents the defendant hospital.

The case is LePage v. Ctr. for Reprod. Med. PC, Ala., No. SC-2022-0515, 2/16/24.