MONTGOMERY, Ala. — The Alabama Supreme Court ruled last week that couples who attempted in vitro fertilization and lost frozen embryos in an accident at a south Alabama storage facility can sue under the state’s wrongful death law.
Since then, three providers have suspended commonly used fertility treatments while they figure out the legal implications.
The ruling is the first of its kind and extends a theory championed by some anti-abortion groups — that embryos and fetuses should be considered children and given legal protection — into a new domain.
While the decision was limited, some legal scholars think there is potential for a broader impact.
Here are some questions and answers about what the statement could mean.
The Alabama Supreme Court said three Alabama couples who lost frozen embryos in an accident at a storage facility could sue the fertility clinic and hospital for wrongful death of a minor child.
The justices reversed a lower court ruling that dismissed the wrongful death claim on the grounds that the embryos were not persons or children.
The court previously ruled that couples could file a lawsuit if a pregnant woman lost a fetus. On Friday, the court said “ectopic children” are also covered by wrongful death law. “Unborn children are ‘children’ under the law, without exception based on developmental stage, physical location or other incidental characteristics,” Judge Jay said. Mitchell wrote in his opinion.
The court relied heavily on both the wording of the wrongful death statute and language added to the Alabama Constitution in 2018, which stated that Alabama protects the “rights of the unborn child.”
Mary Ziegler, Martin Luther King Jr. law professor at the University of California, Davis School of Law, said the Alabama ruling did not go so far as to say that embryos have the same rights as humans — at least not yet.
“The court was quite clear that they did not have to say whether the fetuses or embryos had constitutional rights. They just said that for the purposes of this wrongful death law, it concerns persons or children,” Ziegler said.
However, she said the court’s decision could be read more broadly.
“I think people in Alabama rightly expect this to be the tip of the iceberg, and this ruling will lead to more,” Ziegler said.
Three IVF clinics in the state announced they are suspending IVF services while they sort out the ruling. Another clinic said it would continue to provide IVF services but may adjust patient consent forms.
Patients in clinics where IVF has been paused looked for other providers.
Meanwhile, the legal and practical implications of the Alabama Supreme Court’s ruling are unclear.
Greer Donley, an associate professor at the University of Pittsburgh School of Law, said she expects clinics to offer IVF in Alabama, but thinks they may choose not to store embryos in the state in the future.
However, moving them elsewhere can increase the logistical hurdles, costs and risks associated with the process.
Lawyers expect more cases will arise regarding rights to embryos.
It’s also possible that last week’s ruling was the final word in this Alabama case.
State Supreme Court cases can be appealed to the U.S. Supreme Court – but only if they rely on the U.S. Constitution.
This ruling relies heavily on the Alabama Constitution, including the wording that the state recognizes the rights of the “unborn.”
Republican Sen. Tim Melson said he plans to introduce legislation to protect IVF services in the state. Melson, a physician, said the legislation tries to say that a fertilized egg has legal protection under the law after it is implanted in the uterus — but not before.
“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available to people with fertility issues that need to be addressed because they want to start a family,” Melson said.
He said the ruling is an unintended consequence of language lawmakers and voters added to the Alabama Constitution saying it is state policy to recognize the rights of “the unborn.”
“We have to address it,” Melson said.
No. At least not according to the ruling.
The Alabama case centers on civil wrongful death claims, not criminal charges over the death of embryos.
Professor Zeigler said the ruling was limited to the scope of the wrongful death statute. “The court said we would remain for another day as to whether this embryo has constitutional rights and whether you can prosecute people who kill embryos for murder.”
Currently, they can remain in storage indefinitely. Many embryos do that – for countless reasons.
Even before the Alabama ruling, what to do with embryos that didn’t implant was a mystery, including for people who used IVF to become parents.
Some cannot afford to donate embryos for research or have them destroyed – and do not want to continue paying storage costs. Thousands are already in clinic freezers.
What happens as a result of the new ruling is murky, said Rachel Rebouche, dean of Temple University Beasley School of Law in Philadelphia. She noted that employers sometimes pay to store employee embryos.
“If you’re in Alabama, is that benefit now pointless,” she asked, “because if you choose not to implant those embryos, you’re going to be charged with a tort?”
One movement is calling on people who do not intend to use embryos for further pregnancies to do what they call ‘compassionate transfer’ and implant them in women’s uteruses at a time when pregnancy is unlikely to occur. ___
Associated Press reporter Geoff Mulvihill in Cherry Hill, New Jersey, contributed to this article.