Alabama Court Says IVF Embryos Are 'Extrauterine Children' – And People Under Law

The Alabama Supreme Court has declared that embryos created using IVF or IVF are human beings in the eyes of the law, a first-of-its-kind ruling that is likely to have far-reaching ripple effects for women and health care providers across the the state.

The ruling stems from lawsuits filed by three couples against the Center for Reproductive Medicine, a fertility clinic in Mobile, Alabama. All three underwent IVF treatment at the clinic, which stores the embryos it creates in a freezer at a local hospital.

In December 2020, plaintiffs alleged that a patient at the hospital wandered into the fertility clinic through an unlocked door, opened the freezer where the embryos were stored and removed them. According to the ruling, “the sub-zero temperatures in which the embryos were stored frostbitten the patient's hand, causing the patient to drop the embryos on the floor, killing them.”

All three couples filed a wrongful-death lawsuit in Alabama, seeking damages for the loss of their fetuses, or “ectopic children,” as they are referred to in the suit — and the court ruled that they are entitled to such remedies. “Unborn children are “children'' under the Act, without exception based on developmental stage, physical location, or other ancillary characteristics,” Associate Justice Jay Mitchell wrote in the majority opinion.

In a concurring opinion, the trial judge writes, “human life cannot be unjustly destroyed without incurring the wrath of a holy God, who regards the destruction of His image as an affront to Himself.”

Only one of the nine judges on the court, Judge Greg Cook, dissented.

The ruling, which experts believe is the first of its kind, could have huge implications for Alabama and, if appealed to higher courts, for states across the country. “This is the first time a court has considered the question of whether fertilized eggs or embryos that are cryogenically frozen are children for purposes of the wrongful death statute — and the court finds that they are,” says Dana Sussman, Deputy Exec. director of the legal advocacy group Pregnancy Justice, which works to advance the rights of pregnant women.

In the wake of the 2022 Supreme Court decision ending the federal right to abortion, advocates have sounded the alarm about the potential effects of the fertility drug, the families who take it, the doctors who provide it, and the companies who support it. There are estimated 1.5 million frozen embryos across the country.

Appeals were made to the state supreme court after a district court judge dismissed the lawsuits in 2022, declaring a fetus does not qualify as a “minor child” under Alabama law. The state's highest court has a long history of treating “unborn children” as children, both in civil and criminal law, Sussman notes.

In 2017, the same court decided that a woman who had a miscarriage could sue her doctor for wrongful death. Four years earlier, the court used similar reasoning when declared A law intended to increase penalties for people who cook the day after tomorrow in their homes could be used to prosecute women who used drugs, including marijuana, while pregnant. (Hundreds of pregnant women in Alabama's smallest county have since been arrested on charges of “chemical endangerment of a child,” many of whom are detained during their pregnancies and the early years of their children's final lives.)

While the case was still in dispute, the Alabama Medical Association filed a petition an amicus brief in warning of potential consequences for fertility doctors in the state if the court rules as it ultimately did Friday. Extending wrongful death liability to preserved embryos “would require such embryos to remain in cryogenic storage even after the death of the IVF-treated couple and potentially even after the death of children, grandchildren and even great-grandchildren of the couple,” the medical association reports. he said, calling such a prospect “absurd.”

Attorneys for the plaintiffs also raised the specter of discrimination, arguing that treating IVF embryos differently from naturally conceived embryos could violate the Constitution's equal protection clause.

The justices appear to be nodding in approval at the argument, citing the recent Supreme Court decision Students for Fair Admissions Inc v. President and Associate of Harvard Collegethe case of affirmative action, while refusing to face the substance directly.

Sussman calls the passing reference “a tip in that argument, which I think is quite intentional,” and which could encourage future anti-abortion arguments.

“It leaves the door wide open to make this argument with a straight face next time … in the context of not only IVF babies, but also fetuses or 'unborn life' who have these 14th Amendment rights.” , says Sussman.