The Alabama Supreme Court’s finding last month that frozen embryos created through in vitro fertilization (IVF) are considered minor children under state law has been hailed by the pro-life movement.
Courts in other pro-life states, however, may soon follow the Alabama Supreme Court’s example, creating new battlefields in reproductive law.
The ruling immediately created problems for fertility clinics in the state and tricky political questions for Republicans.
Because of the nature of the IVF process, some embryos end up being destroyed along the road to a successful fertilization, so the prospect of being held liable in wrongful-death lawsuits led several IVF operations in Alabama to shut down out of fear of legal liability.
“Attorney General Marshall has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” the attorney general’s chief counsel, Katherine Robertson, said at the time.
There was also pressure from the public to restore IVF operations, so elected officials in the Republican-dominated state scrambled to insulate the fertility industry and its customers from the effects of the ruling.
Dr. Roger Shedlin, CEO and president of WINFertility, a fertility benefits company based in Connecticut, expressed reservations about the Feb. 16 ruling, saying it was “creating uncertainty about the future of fertility in Alabama and across our nation.”
Remedial Legislation
The legislation signed by Ms. Ivey, a Republican, states, “No action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.”Karla Torres, senior human rights counsel for the Center for Reproductive Rights, a pro-abortion group, criticized the legislation for not going far enough. The measure would reinforce the Alabama Supreme Court’s “extreme ruling recognizing embryos as children,” she said.
“IVF is a critical, evidence-based method of family formation for many Alabamans,” Ms. Torres said, and the court ruling has caused “immediate and devastating harm.”
“What’s been done in Alabama cannot be undone with tepid adjustments of language—the issue is much deeper and aims to strip people of their reproductive autonomy,” she said.
The court will consider whether the FDA followed federal law when it relaxed restrictions on the pill in 2016 and 2021. Advocates for mifepristone say the current system by which the drug is provided is safe, and opponents say it puts women at risk by ignoring the former safety protocols. The Biden administration and pro-abortion groups have expressed concerns that the court’s decision in the case could limit availability of the drug.
The decision is expected by June, and it could become a political issue in the November elections. Some commentators say that if the court reimposes the former mifepristone restrictions, voters will blame Republicans, and Democrats will benefit politically.
Former President Donald Trump reacted to the Alabama ruling by saying he wants more IVF procedures to take place because it would lead to more babies being born.
In a Feb. 23 post on Truth Social, he wrote: “Under my leadership, the Republican Party will always support the creation of strong, thriving, healthy American families. We want to make it easier for mothers and fathers to have babies, not harder!”
During his time in office, President Trump appointed three of the justices who voted to overturn Roe v. Wade, returning the regulation of abortion to the states. Since the 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which determined that there was no right to abortion in the U.S. Constitution, some states have imposed restrictions on abortion.
Speaker of the House Mike Johnson (R-La.) said last week that IVF “needs to be readily available” and that he could not “think of a single person in the Republican conference who disagrees with that statement.”
Democrats are trying to capitalize on the Alabama ruling by incorporating it into messaging against Republicans as the GOP continues to deal with electoral blowback related to the reversal of Roe v. Wade. Some political analysts have said the abortion issue was at least partly responsible for the Republicans’ disappointing performance in the 2022 congressional elections.
The Democratic Congressional Campaign Committee is circulating a memo that targets vulnerable House Republicans for supposedly being “all talk, no action” on IVF and vows “to make House Republicans’ blatant disrespect for women and families a defining campaign issue.”
Facts of the Case
The plaintiffs in the case were parents of embryonic children who were created through IVF.James LePage and Emily LePage are the parents of “Embryo A” and “Embryo B.” William Tripp Fonde and Caroline Fonde are the parents of “Embryo C” and “Embryo D.” Felicia Burdick-Aysenne and Scott Aysenne are the parents of a single embryo known as “Baby Aysenne.”
Between 2013 and 2016, the plaintiffs received IVF treatments at a fertility clinic run by the Center for Reproductive Medicine, which helped each set of parents conceive by uniting the mother’s eggs and the father’s sperm in vitro—that is, outside the mother’s body.
The center used artificial means to gestate each embryo to several days of age and then deposited them in a cryogenic nursery in a hospital designed to keep extrauterine embryos alive by preserving them at an extremely low temperature, potentially for decades.
Several embryos were subsequently implanted, leading to the births of healthy babies. The plaintiffs signed contracts allowing the remaining embryos to be kept in the nursery.
In 2020, an unauthorized person entered the nursery and removed several embryos. The subzero temperatures injured the person’s hand, causing the person to drop the embryos, which died.
The plaintiffs sued the center and the Mobile Infirmary Association, which operated the nursery, under Alabama’s Wrongful Death of a Minor Act and for negligence.
The trial court found that the “cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child,” so it could not honor a wrongful death claim. The court dismissed the case before it could move to the discovery phase.
But in its 7–2 decision, the court said it chose not to address those issues because “the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.”
The court also noted that the Alabama Constitution protects unborn people. The state charter “acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”
The court allowed the wrongful death claims of the parents to move forward under the state statute, holding that embryos stored outside of the human body are “extrauterine children” and therefore included in the definition of “minor children” in the statute.
It is unclear whether the decision can be appealed to the U.S. Supreme Court because the Alabama Supreme Court based its ruling exclusively on state law, an area the nation’s highest court is reluctant to involve itself in.
Steven J. Allen, a native Alabamian long involved in the state’s politics who holds a law degree from Cumberland School of Law, said the Alabama Supreme Court’s ruling makes sense. Mr. Allen is currently a distinguished senior fellow at Capital Research Center, a conservative think tank and watchdog group in Washington.
If a pregnant woman is murdered, the criminal can be charged with killing two people—the mother and the unborn child, he said.
“So why doesn’t that apply to the frozen embryos?” Mr. Allen said.
He added that although the ruling was correct, it’s already causing problems for the fertility industry.
Praise for the Ruling
Public-interest law firms and a pro-life group gave the ruling a thumbs-up for protecting the unborn.Denise Burke, senior counsel with the Alliance Defending Freedom, called the Alabama ruling “a tremendous victory for life.”
“No matter the circumstances, all human life is valuable from the moment of conception,” Ms. Burke said.
“[The court] recognized that every life is valuable—including unborn children. The opinion does not prohibit fertility treatments, including IVF. All the court’s opinion does is protect parents and unborn children under the Alabama Wrongful Death statute.”
Liberty Counsel founder and Chairman Mat Staver also praised the ruling, saying it recognized “that every unborn life should be protected, no matter their stage or location.”
“This important ruling has far-reaching implications,” he said.
The American Life League, a Roman Catholic pro-life educational organization, also supports the Alabama ruling.
Hugh Brown, executive vice president of the group, said that he is opposed to IVF but that any embryo created using that process is still entitled to legal protection.
The catechism of the Catholic church “teaches that from the first moment of its existence, a human being must be recognized as having the rights of a person,” he said, adding that when sperm and egg come together, there is a human being with his or her own DNA.
“You can freeze them, you can store them, you can commoditize them, but it doesn’t make it any less a human being at its very beginnings,” Mr. Brown said.
