Much of the nation was recently shocked by the February 16, 2024 decision of the Alabama Supreme Court holding that embryos created by in vitro fertilization (IVF) were in fact human beings. Media outlets were quick to pick selected quotes from the court’s majority opinion, but very few opted for a complete description of the legal status of the case.
The procedural status of the case may help calm the fears of persons who equate this decision with the creation of the right of the state to invade the decision of a couple to attempt conception through a means other than sexual intercourse.
Who were the plaintiffs?
The case was commenced by three couples that were treated at an IVF Clinic in Alabama. All three couples conceived and gave birth to healthy babies. However, as with most IVF procedures, the couples created several additional embryos that were frozen and preserved by the fertility clinic.
In December 2020, a patient at the hospital entered the hospital’s crypto-preservation unit and opened one of the tanks in which frozen embryos were stored. The individual was not prepared for the fact that the embryos are stored at sub-freezing temperatures, and the sudden intense cold caused the intruder to drop several embryos after he removed them from the tank. The embryos hit the floor and were destroyed by the impact.
The lawsuit
Not surprisingly, the incident prompted a lawsuit. The three couples brought claims against the hospital and the fertility clinic for damages caused by an alleged breach of the Wrongful Death of a Minor Act, an Alabama statute. The trial court dismissed this case after concluding that in vitro embryos are not people or children for purposes of the statute.
The three couples appealed this ruling to the Alabama Supreme Court. The Court reversed the trial court’s ruling and held that the wrongful death of a child statute applies to “all unborn children without limitation. And that includes unborn children who are not located in utero at the time they are killed.”
The Supreme Court allowed the couples’ lawsuits to proceed, all of which seek damages for the wrongful death of the plaintiffs’ children.
Implications for other cases
In one estimate, over one-and-a-half million embryos are believed to be frozen in the United States. The Alabama case raises the obvious question of how long these embryos must be preserved.
In many IVF cases, the embryo undergoes genetic testing for a mutation that is associated with a serious disease or condition. Embryos that are found to carry such a disorder are usually discarded. Under the ruling in Alabama, destroying these embryos would be murder in violation of the Wrongful Death of a Minor Act.
Existing IVF clinics, especially those in Alabama, are caught in a tight bind regarding these embryos: what obligations does a fertilization clinic or hospital have to the couples who created the embryos? As similar cases reach the appellate courts, definitive answers may be forthcoming.
