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Are Embryos Children? The Alabama Supreme Court Says Yes

By Joelle Boxer

This month, the Alabama Supreme Court held that the term “children” in a state statute includes embryos, or “extrauterine children.”

As fertility treatments like in vitro fertilization (IVF) involve the creation of multiple embryos, not all of which are implanted, the implications of this ruling could be far-reaching. Four million births each year in the U.S. are via IVF, an important pathway to parenthood for couples with infertility, LGBTQ couples, and single parents.

This article will examine the Alabama Supreme Court’s decision in LePage v. Mobile Infirmary Clinic and its consequences for Americans building their families through fertility services.

“The relevant statutory text is clear”

The case originated with a lawsuit from three couples in Alabama. These plaintiffs sought IVF services from 2013 to 2016, leading to the creation of several embryos and healthy births. The couples contracted to have their remaining embryos kept in a hospital’s cryogenic “nursery”; in other words, to have their remaining embryos frozen.

In 2020, a patient at the hospital removed the plaintiffs’ embryos from the freezer without authorization and dropped them, “killing them,” according to the decision. The plaintiffs subsequently brought claims against the hospital, alleging violations of the Wrongful Death of a Minor Act (“the Act”) and in the alternative, negligence.

The trial court in Alabama dismissed the couples’ claims. The Alabama Supreme Court reversed.

While briefly acknowledging questions of ethics, the Fourteenth Amendment, and public policy, the Court finds that the 1872 Act’s text resolved the case. From my view, the Court set up the question of the case to come to this result. It frames the issue as follows: since all agree that life begins at fertilization and that an unborn life or child qualifies as a person, why would there be an unwritten exception in Alabama law for unborn children who are located in a cryogenic nursery, as opposed to a pregnant person’s womb?

The Court holds that no such exception exists. It states that the Act, which allows a parent to seek damages for the wrongful death of a “minor child,” covers unborn children, citing precedent, the “ordinary meaning” of “child,” dictionaries (including those from 1872), and the U.S. Supreme Court’s analysis in Dobbs. Even if the term “child” was ambiguous, the Court finds that it would still be required to adopt a definition including unborn life, citing a state constitutional amendment passed in 2018 making it state policy to “recognize and support” the sanctity and rights of unborn life.

Once the definition of “child” encompassed “unborn children,” the Court makes a quick jump to include embryos. It holds that nothing in the Act “narrows th[e] definition to children who are physically ‘in utero.’” It then dismisses arguments that its holding would create incongruity between the definition of “person” in Alabama’s criminal laws and civil laws or make IVF services in Alabama prohibitively expensive. Such public policy concerns “belong before the Legislature, not this Court.” Finally, it concludes that the plaintiffs’ negligence claims were moot, because of its holding under the Act.

“A holy God who made them in His image”

If the majority opinion in LePage is raising eyebrows among reproductive justice advocates, the Chief Justice’s concurrence is raising hackles. It dives deeper into the meaning of the 2018 state constitutional amendment, finding that the Alabama Constitution recognizes “that human life is an endowment from God.” Specifically, the Chief Justice writes that the amendment “refer[s]to the view that all human beings bear God’s image from the moment of conception,” citing historical and modern usage of “sanctity,” scholarship, and the Books of Genesis, Exodus, and Jeremiah. The amendment, as an explicit direction from the people of Alabama, should not be a final resort of interpretation; it should guide the Court’s ruling. The Chief Justice acknowledges concerns about IVF access, but points to other “Westernized” countries that have successfully regulated IVF to “reduc[e] the chances of embryos being killed” as models for the Alabama Legislature to follow.

“I dissent”

The dissent argues that the Legislature, not the Supreme Court, is responsible for updating Alabama’s laws. It states that the original public meaning of the Act in 1872 could not have considered frozen embryos and that prior case law requires congruence between Alabama’s criminal and civil law. It cites 100 years of common law after 1872 holding that claims on behalf of injured, unborn children were “mere legal fiction.” It disagrees with the majority on the relevance of the 2018 state constitutional amendment, as it is not clear how it resolves statutory ambiguities; it was passed nearly 150 years after the 1872 Act; and it does not negate common law precedent.

Most importantly, the dissent highlights that the ruling will “almost certainly” end frozen embryo creation through IVF in Alabama—a result that even the prevailing plaintiffs do not wish for, as parents of children conceived through IVF. It notes that “no rational medical provider” in Alabama would continue to provide this service, as providers will be forced to either offer indefinite embryo storage or face damages claims (or worse—criminalization).

Is there a right to IVF?

Legal scholars predicted that after the overturning of Roe, it would “be very difficult to argue for a constitutionally protected right” to IVF. LePage brings this prediction to bear: the state of Alabama may face no federal legal obstacles in effectively barring the treatment. While the Alabama decision is the first of its kind, some activists believe additional states will follow. Others believe that because of the increasing prevalence of IVF, many Americans will be unlikely to support restricted access.

There isn’t much that activists on both sides of the reproductive rights debate agree upon. But even the sponsors of Alabama’s 2019 anti-abortion legislation recognized the popularity of IVF, declaring that “the egg in the lab doesn’t apply.” As patients and providers in Alabama scramble to comply with the new ruling, I join other advocates in calling for quick legislative action to keep fertility clinics open.

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