In a landmark decision that threatens the future of the in vitro fertilization (IVF) industry in Alabama, the state Supreme Court ruled that frozen embryos are “children” protected by state law.
The ruling, which was issued on Friday, settled a lawsuit filed by patients of an IVF clinic whose embryonic children were destroyed after a hospital patient managed to remove the fertilized embryos from the cryogenic freezer they were stored in and mistakenly dropped them on the ground.
The court’s decision clarified that frozen embryos are not exempt from the protection of Alabama’s Wrongful Death of a Minor Act, which the court says “applies to all unborn children, regardless of their location.”
The plaintiffs, James LePage and Emily LePage, referenced by the court as the parents of “Embryo A” and “Embryo B,” William Tripp Fonde and Caroline Fonde, referenced as the parents of two embryos, “Embryo C” and “Embryo D,” and Felicia Burdick-Aysenne and Scott Aysenne, the parents of one embryonic child, “Baby Aysenne,” alleged that the IVF clinic, the Center for Reproductive Medicine, violated the state law protecting unborn children, accused the facility of negligence, and sought compensation for damages.
“This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act,” the state Supreme Court wrote in its decision. “The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”
The embryos, formed outside the mother’s womb at the Center for Reproductive Medicine, are gestated for “a few days” according to the clinic, then placed in the “cryogenic nursery” prior to implantation. “The parties agree that, if properly safeguarded, an embryo can remain alive in a cryogenic nursery ‘indefinitely’ — several decades, perhaps longer,” the court added.
During the IVF process, several embryos are created to give the patient the best chance of becoming pregnant. Some plaintiffs implanted their embryonic children, resulting in the birth of healthy babies, according to the court. “The plaintiffs contracted to have their remaining embryos kept in the Center’s cryogenic nursery,” where the facility staff were allegedly required to keep the embryos “secured and monitored at all times.”
In December 2020, however, a patient at the hospital storing the embryos entered the fertility clinic “through an unsecured doorway” and removed the embryos from the cryogenic nursery. “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,” the court stated.
The plaintiffs subsequently filed two lawsuits against the clinic, which the clinic responded to by requesting that the trial court dismiss the plaintiffs’ wrongful death and negligence claims. The trial court granted the request, stating that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person,'” and therefore could not be considered “children” as defined by Alabama’s Wrongful Death of a Minor Act.
The plaintiffs appealed the ruling and took the case to the state Supreme Court, which later sided with the plaintiffs on their wrongful death claims.
The defendants, however, argued that legally considering frozen embryos children would complicate the IVF industry and make embryo preservation more “onerous.” In response, the court wrote, “While we appreciate the defendants’ concerns, these types of policy focused arguments belong before the Legislature, not this Court.”
Dana Sussman, the deputy executive director of Pregnancy Justice, told the Washington Post, “This is a natural extension of the march toward fetal personhood.” adding, “You only need one state to be the first out of the gate, and then the next one will feel less radical. This is a cause of great concern for anyone that cares about people’s reproductive rights and abortion care.”
