Alabama Court Rules that Embryos are “Children.”

Fox Rothschild LLP

Fox Rothschild LLP

The decision was issued by the Alabama Supreme Court on February 16, 2024. The implications can be said to be national in scope as individual states step forward with their own interpretations of  Dobbs v. Jackson Women’s Health 597 U.S. 215 (2022).

LePage v. Center for Reproductive Medicine is a civil claim for the wrongful death of embryos. The plaintiffs are prospective parents who created “embryonic children” (the court’s phrase) through in vitro fertilization. The resulting “children” were placed in a “cryogenic nursery” where they could remains for years. In December 2020 an intruder entered the hospital based nursery and attempted to remove several embryos. In handling the embryos, the intruder dropped them and the frozen embryos literally cracked; destroying them. The genetic parents sued for wrongful death claiming that the failure of security permitting the intruder to get into the cryogenic freezer resulted in the death of these children.

The Court framed the issue as whether claims for wrongful death would lie before an embryo is implanted into a human to bring about the birth of the child. It holds that because a frozen embryo is universally accepted under Alabama law as a human life, there is no difference in liability premised upon the location of the embryo at the time it is destroyed. Note that under Alabama law a partial birth abortion was made a statutory crime long ago. Ala. Code 1975-26-23-3. Alabama’s Wrongful Death of a Minor Act does not define a “child” but in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), the Supreme Court held that an unborn child qualifies as a “minor child” under Alabama law, regardless of that child’s viability or stage of development. Id. at 611. The same Court reaffirmed that conclusion in Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012), explaining that “Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child.” Id. at 735. The Court notes that this same interpretation is found in ordinary English dictionaries.  3 The Oxford English Dictionary 113 (2d ed. 1989) (defining “child” as an “unborn or newly born human being; foetus, infant”); Webster’s Third New International Dictionary 388 (2002) (defining “child” as “an unborn or recently born human being”). There is simply no “patent or latent ambiguity in the word ‘child’; it is not a term of art and contains no inherent uncertainty.” Ankrom, 152 So. 3d at 431 (Shaw, J., concurring in part and concurring in the result). The Court references dictionary definitions from the mid-19th century when the Wrongful Death law was enacted and observes they also consistently suggest the definition of a child has not changed, Finally, the Alabama Constitution specifically endorses the concept that unborn children are imbued with legal rights. Art I Sec. 36.06(b). Lastly, the criminal code makes clear that unborn children are children “regardless of viability.”

The decision presents sort of “What are you thinking?” rebuke to the defendant hospitals. But then the Court notes that they were presented with exculpatory language in the IVF and cryogenic nursery contracts setting forth conditions upon which the “nursery” (i.e., cryogenic storage facility) was authorized to “destroy” embryos. On that subject the Supreme Court informs the trial court this it will have to evaluate any defenses premised upon contract.

Working backward, if you start with the premise that an embryo is a child and find that to be irrefutable, how could there ever be a valid contract provision allowing destruction of an embryo? Is that not the equivalent of a contract murder? In theory the contract may pre-date the fertilization that created the embryo but it seems counter-intuitive that you can destroy embryos by contract so long as the contract precedes the fertilization “event.” At best, the defense might be that the contract was formed while Roe v. Wade prevailed, and that the exculpatory language of the IVF agreements may have validity in the context of a civil wrongful death claim.

The bigger and more concerning question is the reach of rulings like this. Roe v. Wade reflected a national public policy applicable throughout the United States and its territories. Dobbs v. Jackson Women’s Health holds that states will be the fulcrum upon which abortion rights are decided. So, suppose you are sitting in your home in Centre County, Pennsylvania. A few years ago, you were living in Mobile, Alabama, and you and your spouse contracted with the defendants in the current case to fertilize and store embryos on your behalf. If you follow the reasoning of this case, you have “children living in Alabama” albeit in storage at -320 degrees Fahrenheit. If you emailed or telephoned the facility in Alabama directing them to destroy the embryos are you committing a crime or at least attempting one? If you are a cryogenic storage facility Alabama and you decide that the current state of the law makes it untenable to operate prospectively, can you just announce that you are closing and turn of the freezers in a world where those appliances are home to hundreds if not thousands of “children?” Can you call the Alabama Department of Human Resources (their state welfare agency) and inform them that they need to come over to pick up 3,000 unborn children and have the state undertake their maintenance indefinitely.

We live in a highly mobile society. Americans move an average of once every five years. Many of those moves are intrastate. But there are probably hundreds of thousands of Americans who have one or more “children” living in another “frozen” state. It’s not yet decided, but one has to think that the “children” are residents of the state where the embryo is physically located and their rights as well as their parent’s responsibilities will be governed by that state. The issues present a potential legal quagmire that affects families living hundreds or thousands of miles away.

The legal reasoning of LePage is quite linear no matter which side you come down on the reproductive rights debate. Unfortunately, the implications of this ruling to families that employed IVF and the facilities that store embryos are anything but straightforward.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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