Alabama Court mulls IVF embryo as 'person' in wrongful death
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The Alabama Supreme Court decided Friday that embryos in a fertility clinic are minor children for purposes of a wrongful death lawsuit.
(Screengrab via YouTube, WALA)

Alabama’s conservative-leaning Supreme Court decided Friday that frozen embryos in a lab count as “minor children,” and that the embryos’ “parents” can bring a wrongful death claim against a clinic after the embryos were accidentally dropped on the floor.

The unprecedented ruling pushes Alabama — a state that has already announced an intention to criminally prosecute women who terminate pregnancies with abortion pills — even deeper into a conservative legal agenda.

The underlying lawsuit began when three couples — James LePage and Emily LePage, William Tripp Fonde and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne — sued the Center for Reproductive Medicine for negligence and wrongful death alleging that a fertility clinic in Mobile negligently allowed a patient to wander into the embryology lab, pick up five fertilized embryos, then drop those embryos rendering them unusable for the in vitro fertilization (IVF) process.

In their court filings, the plaintiffs referred to themselves as the “Parents” of their respective embryos and argued that the Alabama constitution guarantees equal protection to those embryos as “unborn children.” A trial judge dismissed their lawsuit in 2022 after finding that the state’s wrongful death statute did not allow individuals to recover for the loss of frozen embryos.

However, in a ruling Friday, the Alabama Supreme Court reversed that decision, agreed with the plaintiffs, and declared that frozen embryos are, in fact, children. The plaintiffs are now permitted to proceed with their legal theory that dropping fertilized embryos amounts to causing wrongful death as the case moves toward trial. Throughout the 25-page ruling for the majority, Justice Jay Mitchell referred to the frozen embryos as “extrauterine children” and “unborn children who are located outside of a biological uterus at the time they are killed,” and said that the state’s wrongful death law applies to “to all unborn children, regardless of their location.”

Mitchell appeared to arrive easily at the conclusion that the statute was intended to apply to frozen embryos. He noted that the parties and “all members of this Court” agree that an “unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” and that “everyone acknowledges” the same to be true of how the terms are used in “ordinary conversation.”

The only question remaining, Mitchell said, was whether there was some unwritten exception to be applied when the unborn children “are not located … inside a biological uterus … at the time they are killed.” Any ambiguity in statutory language must be resolved “in favor of protecting unborn life,” said the justice.

Mitchell wrote that the state’s Wrongful Death of a Minor Act is “sweeping and unqualified” and applies to “all children, born and unborn, without limitation.”

“It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection,” he reasoned.

Because the court was unwilling to create what it called “a new limitation” on the application of Alabama’s wrongful death statute, the majority concluded that the law must authorize plaintiffs to make claims for the loss of “minor children” who were frozen embryos in a lab.

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