Alabama Supreme Court rules frozen embryos are ‘children’ under state law

MONTGOMERY, Ala. — The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a ruling that critics say could have far-reaching implications for fertility treatments.

The decision was made in a pair of wrongful death lawsuits brought by three couples whose frozen embryos were destroyed in an accident at a fertility clinic. The justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law that allows parents to sue over the death of a minor child “applies to all unborn children regardless of their location.”

“Unborn children are ‘children’ … without exception based on developmental stage, physical location or other incidental characteristics,” Judge Jay Mitchell wrote in the all-Republican court’s majority decision on Friday.

Mitchell said the court previously ruled that fetuses killed while a woman is pregnant are covered by Alabama’s Wrongful Death of a Minor Act and that nothing “excludes ectopic children from the law’s coverage.”

The ruling brought a flurry of warnings about the potential impact on fertility treatments and the freezing of embryos, which were previously considered property by the courts.

“This statement states that a fertilized egg, a clump of cells, is now a person. It really calls into question the practice of IVF,” Barbara Collura, CEO of RESOLVE: The National Infertility Association, said in an interview Tuesday. The group called the decision a “scary development for the 1 in 6 people affected by infertility” who require in vitro fertilization.

She said it raises a number of questions for health care providers and patients, including whether they can freeze future embryos created during fertility treatment or whether patients can one day donate or destroy unused embryos.

The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples had paid to keep others frozen in a storage facility at Mobile Infirmary Medical Center. A 2020 patient wandered into the area and removed several embryos, dropping them on the ground and “killing them,” the ruling said.

The judges ruled that wrongful death lawsuits by the couples could proceed.

An anti-abortion group applauded the decision. “Every person, from the tiniest embryo to an elder nearing the end of their life, has an inestimable value that deserves and is guaranteed legal protection,” Lila Rose, president and founder of Live Action, said in a statement.

Chief Justice Tom Parker issued a concurring opinion citing the Bible when discussing the meaning of the phrase “the sanctity of unborn life” in the Alabama Constitution.

“Even before birth, all people bear the image of God, and their lives cannot be destroyed without effacing his glory,” Parker said.

Judge Greg Cook, who presented the only full dissent from the majority opinion, said the 1872 law did not define “minor child” and extended its original intent to cover frozen embryos.

“In addition, there are other important reasons to be concerned about the state of play in the main advice. No court – anywhere in the country – has reached the conclusion to which the leading opinion gives rise,” he wrote, adding that the ruling “almost certainly puts an end to the creation of frozen embryos through -vitro fertilization (IVF) in Alabama.”

The Alabama Supreme Court’s decision was based in part on anti-abortion language added to the Alabama Constitution in 2018, which stated that it is “the public policy of this state to ensure the protection of the rights of the unborn child .”

Supporters said at the time that it would be “a statement of voters’ beliefs” and would have no impact unless states gained more control over abortion access. States gained control over abortion access in 2022. Critics said at the time that this would have broad civil and criminal law implications beyond access to abortion, and that it was essentially a “personality measure” that would establish constitutional rights to fertilized eggs.