The Alabama Supreme Court’s decision that an unimplanted human embryo is a “minor child” raised the specter of banning in vitro fertilization (IVF) in the state. The state legislature acted quickly to protect access to IVF, but ABA Litigation Section leaders remain wary about the wider ramifications of the decision for access to fertility treatments and women’s healthcare across the United States.
IVF treatment is a multistep series of procedures that occurs over several weeks. First, mature eggs are collected from ovaries. Then, they are fertilized by sperm in a lab where they develop into embryos. Finally, one or more embryos is placed in a uterus where, ideally, an embryo will implant, and the patient will be pregnant. The steps occur over two to three weeks, at least. Often steps in the cycle need to be repeated before IVF treatments are successful.
Critically, IVF treatments are extremely costly and frequently are not covered by health insurance. To manage cost and minimize the number of time-consuming and invasive procedures they must undergo, IVF patients regularly choose to fertilize more eggs than they wish to implant in a cycle and opt to have the additional embryos frozen until they are needed. These frozen embryos are later destroyed if they are not needed.
In LePage v. Center for Reproductive Medicine, three sets of parents brought two legal actions against an Alabama fertility clinic after a person broke into the “cryogenic nursery” where frozen embryos were stored and destroyed several of them by dropping them on the floor. The parents brought property-related and negligence claims against the clinic, as well as claims under Alabama’s Wrongful Death of a Minor Act (Wrongful Death Act).
The trial court dismissed the plaintiffs’ claims, finding that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of ‘person’ or ‘child.’” The Alabama Supreme Court reversed, holding that the Wrongful Death Act “applies on its face to all unborn children, without limitation.”
Alabama passed the Wrongful Death Act in 1872, more than 100 years before the first IVF child was born. It provides a civil cause of action with punitive damages for parents of a deceased child “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person.” The Wrongful Death Act does not define “minor child.”
The Alabama Supreme Court asserted, and the parties agreed, that the ordinary definition of “child” includes unborn children from the moment of fertilization to birth. Then, relying upon its 2011 decision in Mack v. Carmack, which extended the Wrongful Death Act to unborn children regardless of viability or stage of development, the court found that the plaintiffs had properly stated claims under the Wrongful Death Act for the destroyed unimplanted embryos. It reasoned that “unborn children are ‘children’ under the Act, without exception to developmental stage, physical location, or any other ancillary characteristics.”
The defendants sought to distinguish between embryos located in utero at the time of death from the frozen, unimplanted embryos at issue in this case. The court rejected this argument with a reference to babies developed entirely outside a biological uterus. The court supposed that such a full-term IVF infant or toddler would never qualify as a “child” if the defendants’ position were adopted. The plaintiffs objected to the defendants’ proposed distinction with the equally unlikely scenario of a child being killed while being birthed—after having exited the uterus but while still in the birth canal.
In dissent, Justice Gregory C. Cook, a former Litigation Section Council member, urged judicial restraint and focused on the meanings of the words of the Wrongful Death Act as they were understood in 1872 when it was passed. His textualist analysis of the Wrongful Death Act eschewed any attempt to “rewrite statutes or to substitute [the court’s] judgment for that of the legislature, noting that “public-policy arguments should be directed to the legislature,” not the court.
Wrongful death claims did not exist at common law; such claims are strictly statutory. Therefore, Justice Cook dissented based on the 1872 meaning of words in the Wrongful Death Act. Specifically, his analysis considered “how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.”
Justice Cook noted that the majority started its analysis by assuming that the unimplanted embryos were children, referring to them as “extrauterine children.” With this assumption in place, the court did not analyze whether embryos fit the definition of “minor child” under the Wrongful Death Act. Rather, the court analyzed whether the Wrongful Death Act contained an extra-textual exception for unimplanted embryos.
The question the court should have asked is whether an embryo would have been considered a “minor child” in 1872, according to Justice Cook. He concluded that “[t]here is no doubt that the common law did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal homicide liability.”
Indeed, in a 1926 case, Stanford v. St. Louis-San Francisco Railway Co., the court wrote, “that an unborn child may be regarded [as having actual existence] … is a mere legal fiction, which . . . has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth.” One hundred years after the Wrongful Death Act was enacted, this was expressly overturned in Huskey v. Smith, which recognized a claim for wrongful death arising from a prenatal injury to a child that died after birth.
The defendants argued that the definition of “person” under Alabama’s criminal-homicide laws should be congruent with the definition of “person” under its civil–wrongful death laws. They urged that because an unimplanted embryo is not a person under Alabama’s homicide laws, it should not be a person under wrongful death statutes. The majority disagreed, however, asserting that Alabama law does not require congruity between the classes of people protected by these laws. While it would be unfair to insulate a defendant from civil liability when they could be criminally liable for the same action, it is not unfair to impose civil liability where there is no chance of criminal liability.
In his dissent, Justice Cook also disagreed with this conclusion. In 2006, the Brody Act amended the definition of “person” in Alabama’s criminal-homicide statutes to include an “unborn child in utero at any stage of development, regardless of viability.” In the Wrongful Death Act case Mack v. Carmark, the court noted the “clear legislative intent to protect even nonviable fetuses from homicidal acts” implicit in the Brody Act. The court also emphasized “the need for congruence between the criminal law and [Alabama’s] wrongful-death statutes.”
Several years later, in Stinnett v. Kennedy, the court stated that the courts “borrow” the definition of “person” from homicide statutes to inform who is protected by the Wrongful Death Act. By rejecting the need for congruity between the criminal and civil statutes, Justice Cook asserted that the majority decision effectively overturned Mack and Stinnett.
Justice Cook also commented in dissent that “not a single state has held that a wrongful death action (or a criminal-homicide action) can be brought for the destruction of a frozen embryo. He noted that a number of jurisdictions, including those in Arizona, Ohio, and Tennessee, had rejected such causes of actions. While Alabama courts are not bound by other states, Justice Cook thought it wise for such results to cause the court to reconsider its conclusions about “expanding the reach of a statute passed in 1872 and our understanding of the common law.”
Justice Cook’s dissent noted that the main opinion’s holding “will undoubtedly cause significant consequences that will affect the future lives of thousands of Alabama citizens for years to come and the babies who will not be born.” He commented that this “will mean that the creation of frozen embryos will end in Alabama” because “no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk a claim for punitive damages.” He then urged “the Legislature to promptly consider these issues to provide certainty to Alabama parents-to-be and to the medical professionals who are attempting to provide services to them.”
The LePage decision caused immediate and palpable uncertainty for the fertility industry and patients in Alabama. Within days of its release, Alabama’s largest hospital paused all IVF treatments, stopping patients mid-treatment cycle and leaving them without any information about when their treatment may continue. Among other things, it raised the specter of criminal liability for patients and clinics alike, should patients decide they no longer need previously frozen embryos.
The legislature acted quickly to protect IVF treatments in Alabama. Less than three weeks after the LePage decision was issued, Alabama enacted a law that guarantees immunity from civil and criminal liability for patients and healthcare providers.
Litigation Section leaders expressed trepidation about the LePage decision and its implications for reproductive freedom. “The definition of ‘minor child’ at the time the Wrongful Death Act was passed in 1872 could not have included frozen embryos—it’s plain and simple, if you’re an originalist,” explains Kathryn Dietrich Perreault, Birmingham, AL, cochair of the Section’s Consumer Litigation Committee.
Although limited to the interpretation of the Wrongful Death Act, “the fact remains that courts will occasionally look to other laws with similar terms to resolve issues of statutory interpretation. And with that, the implications broaden,” warns Perreault. And while the Alabama legislature’s new law provides legal cover for fertility clinics to resume IVF treatments, it does not address the broader implications of granting personhood to embryos.
For example, if an embryo is a person, criminal liability for abortion services could be a natural extension. In Planned Parenthood v. Mayes, the Arizona Supreme Court decided that an 1864 law criminalizing nearly all abortions, which had been rendered meaningless by the U.S. Supreme Court’s decision in Roe v. Wade, is the operative law in Arizona today since the Court’s decision in Dobbs v. Jackson Women’s Health Organization expressly overturned Roe. Shortly after the Mayes decision, however, the Arizona legislature and governor have likewise taken action to moot that holding.
“I never really thought that the Supreme Court was going to overturn Roe v. Wade,” declares Kelly M. Matayoshi, San Francisco, CA, Managing Director of the Section. “I think this is going to have a major effect on the 2024 election because it is a pivotal issue that can rally people to vote on either side of the issue,” predicts Matayoshi.
Section leaders are equally concerned about how the fertility industry will assimilate the LePage decision. They are concerned about increased cost of already expensive treatments, a decrease in accessibility of fertility treatments, and a crippling of innovation. “Even with the legislature stepping in, I think that IVF is going to become more expensive due to the legal considerations and the risk that comes with it,” notes Matayoshi. “Unfortunately, it is going to increase the number of people who cannot afford IVF treatment,” she points out. “It can also make the fertility clinic business model unviable.”
The full effect of the LePage decision may not be felt for many years. “Looking further down the line, I think research into infertility may be affected. Research dollars may dwindle as a decreased number of people seek fertility treatments,” Matayoshi suggests. “This will have a ripple effect that increases the cost of every aspect of IVF treatment, including the cost of drugs used in the process.”
“It will be interesting to see what happens next,” considers Matayoshi. “The strong rebuke from the public and the legislature suggests that the groups pushing these lines of cases need to reconsider their strategy, because the legislature can quickly limit the ruling,” she concludes.
