An embryo created through in-vitro fertilization (IVF) is a child protected by Alabama’s wrongful death act and the Alabama Constitution, the Alabama Supreme ruled on Friday

In a case originating from Mobile, LePage v. Mobile Infirmary Clinic, Inc., the Supreme Court held in a 7-2 decision that parents of frozen embryos killed at an IVF clinic when an intruder tampered with an IVF freezer may proceed with a wrongful death lawsuit against the clinic for alleged negligence. 

The Court also held that the Alabama Constitution's Sanctity of Life Amendment, ratified by Alabama voters and made law in 2018, would require the Court to interpret the law in favor of protecting the unborn. Alabama’s Sanctity of Life Amendment declares in the state Constitution that it is “the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

Alabama Supreme Court Associate Justice Jay Mitchell wrote the majority’s opinion and said, “This Court has long held that unborn children are 'children' for purposes of Alabama's Wrongful Death of a Minor Act.”

“Finally, the defendants and their amicus devote large portions of their briefs to emphasizing undesirable public-policy outcomes that, they say, will arise if this Court does not create an exception to wrongful-death liability for extrauterine children. In particular, they assert that treating extrauterine children as 'children' for purposes of wrongful-death liability will 'substantially increase the cost of IVF in Alabama' and could make cryogenic preservation onerous,” he added. “While we appreciate the defendants' concerns, these types of policy-focused arguments belong before the Legislature, not this Court. Judges are required to conform our rulings 'to the expressions of the legislature, to the letter of the statute,' and to the Constitution, 'without indulging a speculation, either upon the impolicy, or the hardship, of the law.'"

Mitchell continued, “Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It 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.”

Alabama Associate Justice Greg Cook wrote in his dissenting opinion that the “main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama.”

“I respectfully dissent," Cook said. "The first question that this Court is being asked to decide in these appeals is whether Alabama's Wrongful Death of a Minor Act ('the Wrongful Death Act'), see § 6-5-391, Ala. Code 1975, as passed by our Legislature, provides a civil cause of action for money damages for the loss of frozen embryos. This is a question of the meaning of the words in that Act, as it was originally passed and understood in 1872. My sympathy with the plaintiffs and my deeply held personal views on the sanctity of life cannot change the meaning of words enacted by our elected Legislature in 1872. Even when the facts of a case concern profoundly difficult moral questions, our Court must stay within the bounds of our judicial role. Moreover, there are other significant reasons to be concerned about the main opinion's holding. No court -- anywhere in the country -- has reached the conclusion the main opinion reaches. And, the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ('IVF') in Alabama.”

Chief Justice Tom Parker, who agreed with the majority opinion, wrote a separate opinion to expand on how the Sanctity of Life Amendment introduced a strong legal public policy to protect unborn life in Alabama, including IVF embryos. Parker wrote, “A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb.”

Parker noted that the People of Alabama’s decision to put the word "sanctity" in the constitutional amendment was deliberate and had theological connotations about the value of human life. That life is sacred because every human being is made in the image of God, noted Chief Justice Parker, and the People chose to make that a clear matter of constitutional law. As to the effect of the Sanctity of Life Amendment, Chief Justice Parker reasoned that it “does much more than simply declare a moral value that the People of Alabama like. Instead, this constitutional provision tilts the scales of the law in favor of protecting unborn life.”

 In response to a dissenting Justice’s claim that IVF would now end in Alabama, Parker said that argument was not well-founded, pointing to medical regulations in other Western countries that better protect the lives of embryonic children while still allowing couples to become parents through IVF technology. Regardless, the Constitutional Amendment protects the sanctity of IVF-created embryos like all other human life, Chief Justice Parker concluded, and the Court must follow that legal policy: “Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image.”

The cases arose when three couples, who had already become parents through IVF, sued the Mobile Infirmary Clinic, Inc., claiming that the clinic's negligence in leaving the IVF clinic and freezer room unlocked and vulnerable to an intruder resulted in the deaths of their frozen embryos, which the clinic conceded were human. The Mobile County trial judge dismissed the cases, reasoning that a frozen embryo is not a “child” under Alabama's Wrongful Death of a Minor Act.

On appeal, the Supreme Court has now reversed the trial court and held that a human frozen embryo is a “child,” which is “an unborn or recently born person,” within the plain meaning of the Act and under prior judicial decisions recognizing that unborn children are protected by Alabama law. Similarly, the Court noted that when the statute was enacted in 1872, 'child' meant 'the immediate progeny of parents,' and that the Court would not create an exception in the statute for these IVF embryo children just because they were located outside the womb. The word 'child,' the Court reasoned, means 'an unborn or recently born individual member of the human species, from fertilization until the age of majority.'”

Even if the wrongful death act did not clearly protect IFV embryos, held the Court, then Alabama's Sanctity of Life Amendment would have required the Court to interpret the Act in favor of - and not against - protecting the embryos, because “the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

For more information, see LePage v. Mobile Infirmary Clinic, Inc., SC-2022-0515, and Burdick-Aysenne v. The Center for Reproductive Medicine, P.C., SC-2022-0579, available on the Alabama Supreme Court's website here.

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