The Alabama Supreme Court has opened a new front in the legal debate about when human life begins. Embryos created and stored in medical facilities must be considered children under state law governing wrongful death, the court ruled.
Friday’s decision was cheered by anti-abortion activists nationwide, who have long argued that life begins at conception. They were delighted that, for the first time, a court had included conception outside the womb within this definition. But the decision’s most powerful and immediate effect will be on fertility patients trying to get pregnant, not on women seeking to terminate their pregnancies.
The Alabama decision calls on states to enact tough new regulations on the fertility industry that could drastically limit the number of embryos created during a medical treatment cycle and affect the future of millions of stored frozen embryos. A concurring opinion even offered road maps for such statutes. This could have a chilling effect on a person seeking to have children through IVF, whether they are single or part of a same-sex or heterosexual couple.
What did the decision say?
The decision is actually somewhat close. It applies to three couples who had sued the Center for Reproductive Medicine, a fertility clinic in Mobile, for the inadvertent destruction of their embryos. The plaintiffs argued that they were entitled to punitive damages under Alabama’s 1872 wrongful death of a minor act. Two lower state courts disagreed, saying the fetuses were neither people nor children. The state Supreme Court reversed those rulings, saying that fetuses fell squarely within the definition of minors in Alabama and that the negligence lawsuits could go forward. The case will now return to state District Court for further proceedings.
What did the decision do? not they say
The decision is silent on the fate of other frozen embryos in Alabama because the issue was not before the court. The ruling only addresses the conditions under which plaintiffs can bring a negligence action against a fertility clinic for destroying an embryo. However, it could ultimately have significant consequences for Alabama patients and providers.
On Wednesday, the IVF clinic at the University of Alabama at Birmingham announced it was temporarily closing to investigate the impact of the court’s decision on its patients and providers. One fear is that the clinic, doctors and even patients may face daunting new liability issues related to the handling of embryos.
What will it mean for patients and fertility clinics?
“The honest answer is we don’t know for sure,” said Dr. Paula Amato, president of the American Society for Reproductive Medicine, an organization that lobbies on behalf of fertility experts and patients. “But the decision is very troubling.”
Embryo freezing is a widespread practice. During a typical IVF cycle, a woman receives hormones to maximize egg production. A doctor then retrieves as many eggs as possible and infuses them with sperm in the clinic’s laboratory, with the goal of creating viable embryos for implantation.
This process often results in multiple embryos. Because of the risks associated with IVF multiple births, protocols now urge doctors to implant only one embryo at a time. But success with implantation is hardly guaranteed, so doctors usually freeze the remaining embryos for subsequent attempts.
But if the laws prevent providers in Alabama from freezing embryos, patients may face the medically challenging and financial prospect of many more cycles, Dr. Amato said. Success rates will likely plummet. “It will disproportionately affect lower-income people, people of color and people in LGBT communities,” he said.
Overall, according to federal data, infertility affects 9 percent of men and 11 percent of women of reproductive age in the United States.
Therefore, the decision may limit the ways in which reproductive medicine is practiced in Alabama. “The ruling potentially criminalizes or imposes a high civil penalty for routine procedures we do every day,” said Dr. Amato.
Alabama court suggested protocols for frozen embryos?
No. The court was clear that it could not regulate fertility clinics and the practice of reproductive medicine. But in a concurring opinion, Chief Justice Tom Parker strongly urged the Alabama Legislature to consider the issue. He said other countries, including Italy, New Zealand and Australia, had limited the number of embryos that could be created as well as implanted, and suggested that states look to regulatory standards.
Is this case going to the US Supreme Court?
Not immediately, legal experts predicted. The clinic would have to appeal the decision, a move that could be risky, said Katherine L. Kraschel, a reproductive law expert at Northeastern University School of Law. In light of the United States Supreme Court’s 2022 Dobbs decision that overturned a national right to abortion, he said, the clinic’s chances of even reaching the Supreme Court’s door would be slim, “because the case hinges on the interpretation of of the Supreme Court of the State of the state’s constitution”.
Attorneys for the clinic did not respond to requests for comment.
Also, the case is far from over in Alabama. The State Supreme Court ordered the parties to return to the district court to hear the case in light of the new decision, including suggesting that other legal avenues be explored. One issue he identified was whether a clinic’s standard contract with fertility patients, which typically allows providers to donate or destroy embryos at some future point, could limit the clinic’s liability in this case.
Does all this have any effect on abortion?
In recent years, anti-abortion groups have been lobbying to give fetuses the status of “personhood,” which would entitle them to legal protection. In extending that umbrella to cover embryos in a lab, the Alabama Supreme Court used the rationale behind the US Supreme Court’s 2022 abortion decision: that embryos deserve the court’s shield under the Equal Protection Clause of the 14th Amendment.
“The Supreme Court is making this effort to think of the fetus as a vulnerable, unprotected minority that the courts are obligated to step in and protect, either through upholding restrictions on abortion or through accepting and recognizing the fetus as a person. said Melissa Murray, a reproductive law expert at New York University School of Law.
Americans United for Life, the nation’s oldest anti-abortion organization, was particularly encouraged by Alabama’s adoption of the issue.
“The Alabama Supreme Court has held that the text of the wrongful death of a minor statute is clear and applies to all preborn children, including plaintiffs’ fetal preborn children. In doing so, the Court correctly recognized the legal status of fetuses as human persons,” Danielle Pimentel, the agency’s policy adviser, said in a statement. “This decision is a step in the right direction toward ensuring that all preborn children are equally protected under the law.”
Dr. Amato said he found it ironic that anti-abortion groups are supporting decisions that could severely limit IVF
“IVF is about building a family,” she said. “It should be seen by red states as a pro-life activity.”
