The Alabama Supreme Court has declared that embryos created using in-vitro fertilization, or IVF, are people in the eyes of the law, a first-of-its kind ruling that is likely to have far-reaching ripple effects for women and health care providers across the state.
The ruling stems from lawsuits filed by three couples against the Center for Reproductive Medicine, a fertility clinic in Mobile, Alabama. All three underwent IVF treatment at the clinic, which stores the embryos it creates in a freezer at a local hospital.
In December 2020, the plaintiffs allege a patient at the hospital wandered into the fertility clinic through an unlocked door, opened the freezer where the embryos were being preserved, and removed them. According to the ruling, “The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.”
All three couples sued under Alabama’s Wrongful Death of a Minor Act, seeking damages for the loss of their embryos, or “extrauterine children,” as they are referred to in the lawsuit — and the court ruled they are entitled to such remedies. “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Associate Justice Jay Mitchell wrote in the majority opinion.
In a concurring opinion, the chief justice of the court writes, “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.”
Just one of the nine justices on the court, Justice Greg Cook, dissented.
The ruling, which experts believe is the first of its kind, could have enormous repercussions in Alabama and, if appealed to higher courts, states across the country. “This is the first time that the court has considered the question of whether fertilized eggs or embryos that are cryogenically froze are children, for the purposes of the wrongful death statute — and the court holds that they are,” says Dana Sussman, deputy executive director of the legal advocacy group Pregnancy Justice, which works to advance the rights of pregnant people.
In the wake of the Supreme Court’s 2022 decision ending the federal right to abortion, advocates have raised alarms about the potential impact on fertility medicine, families that take advantage of it, doctors who provide it, and companies that support it. There are an estimated 1.5 million frozen embryos across the country.
The appeals were made to the state’s highest court after a circuit court judge first dismissed the suits in 2022, declaring an embryo does not qualify as a “minor child” under Alabama law. The state’s supreme court has a long history of treating “unborn children” as children, both in civil law and in criminal law, Sussman notes.
In 2017, the same court ruled that a woman who had a miscarriage could sue her doctor for wrongful death. Four years earlier, the court used similar logic when it declared a statute meant to increase penalties on people who cook meth in their homes could be used to prosecute women who used drugs, including marijuana, while pregnant. (Hundreds of pregnant women in Alabama’s smallest county have since been arrested on “chemical endangerment of a child” charges, many of whom are held for the duration of their pregnancies, and the early years of their eventual children’s lives.)
While the case was still being argued, the Alabama Medical Association filed an amicus brief in the warning of the potential consequences for fertility doctors in the state if the court ruled as it ultimately did on Friday. Extending wrongful death liability to preserved embryos would “require such embryos to remain in cryogenic storage even after the couple who underwent the IVF treatment have died and potentially even after the couple’s children, grandchildren, and even great grandchildren have died,” the medical association brief said, calling such a prospect “absurd.”
Lawyers for the plaintiffs also raised the specter of discrimination, arguing that treating embryos created via IVF differently from embryos conceived naturally could violate the Constitution’s equal protection clause.
The justices seem to nod approvingly at the argument, invoking the Supreme Court’s recent decision in Students for Fair Admissions Inc v. the President and Fellow of Harvard College, the affirmative action case, while declining to address the merits directly.
Sussman calls the passing reference “a hat tip to that argument, which I think is quite intentional,” and which could encourage future anti-abortion arguments.
“It leaves the door open wide enough to make this argument with a straight face the next time around… in the context of not just babies born through IVF, but fetuses or ‘unborn life’ as having these 14th Amendment rights,” Sussman says.
