Feb 20, 2024 - Health

Alabama's top court rules IVF embryos are children

Illustration of a stork holding a fountain pen in its beak.

Illustration: Lindsey Bailey/Axios

Alabama's Supreme Court threw a new wrinkle into the post-Roe reproductive health landscape, ruling late last week that frozen embryos created through in vitro fertilization are children under state law.

Why it matters: How states define unborn human beings could determine access to assisted reproductive care and has big implications for IVF clinics, which could be held liable for discarding surplus embryos.

Details: The 7-2 ruling was in response to two wrongful death suits brought against a Mobile fertility clinic in 2021 after a patient allegedly broke into a freezer, removed stored human embryos and then dropped them.

  • The clinic argued plaintiffs lacked standing as parents because the embryos had not been transferred to a uterus, and a circuit court agreed.
  • But the state's highest court on Friday held that an 1872 wrongful death law and an amendment to the state constitution made no such distinction and that the lawsuit could proceed.

What they're saying: "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," Justice Jay Mitchell wrote for the majority.

  • "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."
  • In a dissent, Justice Greg Cook wrote the majority opinion "almost certainly ends the creation of frozen embryos through in-vitro fertilization in Alabama."

The court's finding will have "devastating consequences" for the 1 in 6 people who experience infertility and who need IVF to build a family, said Barb Collura, president and CEO of Resolve: The National Infertility Association.

  • Among the unanswered questions is how the ruling affects families who currently have embryos stored at the state's five fertility clinics, she said.
  • In a brief to the court last year, the Medical Association of the State of Alabama warned that siding with the plaintiffs would mean increased exposure to wrongful death lawsuits that "at best" would substantially increase IVF costs.
  • "More ominously, the increased risk of legal exposure might result in Alabama's fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine," the group wrote.
  • In some instances, states with strict anti-abortion laws have sought to tamp down concerns that IVF treatments would be affected.
  • Mitchell's majority opinion states arguments about the effect on IVF "belong before the legislature," rather than the courts.
  • "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,'" he wrote.

Our thought bubble: The ruling illustrates how the overturning of Roe v. Wade can subsume other areas of reproductive health, by, among other things, giving states final say over such questions as what defines a person.

  • While legislatures can revise and clarify policies to reflect medical advances, it falls to courts to interpret the scope of existing state laws.
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