The Alabama Supreme Court rules that frozen embryos are “children” under state law

(Dave Martin/Associated Press)

The Alabama Supreme Court rules that frozen embryos are “children” under state law



February 20, 2024

The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a ruling that critics say could have far-reaching implications for fertility treatments.

The decision was made in two wrongful death cases brought by three couples whose frozen embryos were destroyed in an accident at a fertility clinic. The justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law that allows parents to sue over the death of a minor child applies to all unborn children regardless of their location.

Unborn children are children… without exception based on developmental stage, physical location or other additional characteristics, Justice Jay Mitchell wrote Friday in the majority decision of the all-Republican court.

Mitchell said the court previously ruled that fetuses killed while a woman is pregnant are covered by Alabama’s Wrongful Death of a Minor Act, and nothing excludes ectopic children from the Acts’ coverage.

The ruling brought a flurry of warnings about the potential impact on fertility treatments and the freezing of embryos, which were previously considered property by the courts.

After Roe vs. Wade, more patients are relying on prenatal testing as states tighten abortion laws

This statement states that a fertilized egg, a clump of cells, is now a person. It really calls into question the practice of IVF, Barbara Collura, CEO of RESOLVE: The National Infertility Ass


n., said in an interview on Tuesday. The group called the decision a “scary development for the 1 in 6 people affected by infertility” who require in vitro fertilization.

She said it raises a number of questions for health care providers and patients, including whether they can freeze future embryos created during fertility treatment or whether patients can ever donate or destroy unused embryos.

The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples had paid to keep others frozen in a storage facility at Mobile Infirmary Medical Center. A 2020 patient wandered into the area and removed several embryos, dropping them on the ground and “killing them,” the ruling said.

The judges ruled that wrongful death lawsuits by the couples could proceed.

An anti-abortion group applauded the decision. “Every person, from the tiniest embryo to an elder nearing the end of their life, has inestimable value that deserves and is guaranteed legal protection,” Lila Rose, president and founder of Live Action, said in a statement.

Chief Justice Tom Parker issued a dissenting opinion citing the Bible when discussing the meaning of the phrase “the sanctity of unborn life” in the Alabama Constitution.

“She was gasping for air.” The fight against abortion shifts to women who suffered from strict bans

Even before birth, all people bear the image of God, and their lives cannot be destroyed without effacing his glory,” Parker said.

Judge Greg Cook, who filed the only full dissent to the majority opinion, said the 1872 law did not define “minor child” and expanded from its original intent to cover frozen embryos.

Moreover, there are other important reasons to be concerned about the main positions. No court anywhere in the country has reached the conclusion reached by the leading opinion,” he wrote, adding that the ruling will almost certainly put an end to the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.

The Alabama Supreme Court’s decision was based in part on anti-abortion language added to the Alabama Constitution in 2018, which stated that it is “the public policy of this state to ensure the protection of the rights of the unborn child .”

Supporters said at the time that it would be a statement of voters’ beliefs and would have no impact unless states gained more control over abortion access. States gained control over abortion access in 2022. Critics at the time said this would have broad civil and criminal law implications beyond access to abortion, and was essentially a personal measure that would establish constitutional rights to fertilized eggs.


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