New Ruling in Alabama Declares Frozen Embryos 'Persons'
Ala. Supreme Court Ruling Raises Questions About IVF Treatments and Unused Embryos
In 2018, residents of the state of Alabama voted to amend the language of their state constitution to extend legal personhood to unborn children. That ruling has been cited in a recent Ala. Supreme Court ruling regarding how unused embryos are dealt with regarding in-vitro fertilization (IVF) treatments. The 2018 ballot measure was approved with 59 percent of the vote. In 2019, Governor Kay Ivey signed a bill into law prohibiting all abortions in the state except those necessary to prevent a serious health risk to the mother. There is also an exception in the bill for “any act to terminate the pregnancy of a woman when the unborn child has a lethal anomaly.” House Bill 314, the Human Life Protection Act, classified abortion as a felony punishable with up to 99 years in prison for the doctor who performs it.
In pre-IVF paperwork, there’s a difficult question that couples face, which details the four options for what's known as “embryo disposition:” donating the embryo to another couple; donating it to science; disposing of it; or keeping it frozen. Studies have found that 40 percent of fertility patients struggle to decide what to do with what are called “remaining embryos”, the ones that are left over after the in-vitro fertilization process is complete. According to WHYY, other research found that up to 70 percent of patients delay the decision for five years or more.
These days, thanks to the pervasive discussion around abortion and the humanity/personhood of the unborn, IVF has found itself at the center of many debates, specifically, as it applies to the disposal of any remaining embryos.
The 2018 amendment was used in a 2020 case where an Alabama resident named Ryan Magers filed a wrongful death suit against the Alabama Women's Center for Reproductive Alternatives, its employees, and a pharmaceutical company over an abortion of “Baby Roe” received by Magers' girlfriend in February 2017. The lawsuit argued that under Alabama law, an unborn child is a legal person and the argument was based, in part, on the provision that Amendment 2 added to the state constitution. On March 5, 2019, Madison County Probate Judge Frank Barger decided that Baby Roe was a person with legal rights and allowed the lawsuit to go forward with Magers' representing Baby Roe's estate.
In 2020, however, the Alabama Supreme Court upheld a lower court's decision to dismiss the case.
So What Does the New Ruling Actually Say?
On February 16, 2024, the Alabama Supreme Court ruled that embryos are legally children under state law and that wrongful death lawsuits could be pursued following their disposal/destruction. A case was brought in 2021 where three couples filed a lawsuit against the Center for Reproductive Medicine and the Mobile Infirmary Medical Center after their frozen embryos were dropped by a patient.
The couples claimed they could file a wrongful death lawsuit under the Wrongful Death of a Minor Act, contending that the embryos constituted children. However, the medical centers countered, stating that the act doesn't extend to embryos outside the womb. The case debated the liability of a patient who accidentally dropped and destroyed frozen embryos belonging to another couple, ultimately resulting in the court ruling in favor of holding the patient accountable.
The Mobile County Circuit Court dismissed the case in 2022 after ruling that a frozen embryo did not fit the definition of a “minor child” under state law. In its 2024 ruling, The Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” wrote Alabama Supreme Court Justice Jay Mitchell. “[T]he 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.”
What Would This Mean for Legislation in Other States?
No other state has yet set any legal precedent similar to Alabama’s. In Tennessee, for instance, anti-abortion advocates have advised lawmakers to “wait a few years” before discussing IVF treatments and how to regulate them. Kansas is one state, among others, that considered legislation banning the disposal/destruction of embryos, but those bills died in committee. In Georgia, “personhood” legislation has even affected their tax laws and an unborn child can be claimed as a dependent after 6 weeks of pregnancy or once the heartbeat can be detected.
Alabama now accounts for nearly half of all criminal cases related to pregnancy across the country. “Alabama had far and above the highest number of pregnancy criminalization arrests, representing almost half (46.5%) of the total,” the report said. South Carolina accounted for 180 of the cases, while Tennessee accounted for 131.
The majority of criminal cases documented by Pregnancy Justice are related to substance use, including marijuana, cocaine, or methamphetamines. In about one-quarter of these cases, the substance was legal: such as nicotine, alcohol, or prescription opiates.
That said, in states where the unborn are legal persons, minor children, these laws are perfectly logical. Feeding your born child drugs or allowing them access to them, even legal drugs, would result in very serious charges like child endangerment up to, but not limited to negligent homicide.
Tennessee holds the distinction of being the pioneer state to implement a "fetal assault law" in 2014, permitting the prosecution of pregnant women for drug use while pregnant. It was allowed to expire in 2016, however, after being criticized by state and national health advocacy groups. At the risk of drifting into the “opinion” side of things, it’s odd that health organizations would oppose this type of law because it is an established scientific fact that during pregnancy, there are now two different humans consuming those drugs - one of whom cannot consent.
Will this ruling criminalize IVF treatments?
In February, the office of Alabama Attorney General Steve Marshall issued a statement clarifying their stance: “Attorney General Marshall has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” remarked Katherine Robertson, chief counsel at the Alabama Attorney General's Office.
On February 24th, an explosive device was detonated outside of the AG’s office building, but thankfully there were no injuries reported. No motive has been made known as of this time. AG Marshall issued this statement on the following Monday:
“In the early hours of Saturday, February 24, an explosive device was detonated outside of the Alabama Attorney General’s Office building in Montgomery. Thankfully, no staff or personnel were injured by the explosion. The Alabama Law Enforcement Agency will be leading the investigation, and we are urging anyone with information to contact them immediately.”
Alabama state Senator Tim Melson, a doctor and a Republican, told local media that he was going to file legislation that would protect the IVF industry and families who use it. Senate and House committees approved identical bills and committee approval puts the bills in position for possible final passage on Wednesday. The bills are intended to allow IVF clinics to resume services as several have paused operations because of the legal risk. Among those that have halted their services to patients are The University of Alabama at Birmingham, Alabama Fertility, and the Center for Reproductive Medicine at Mobile Infirmary. Six other Alabama fertility service providers did not respond to Reuters questions about their intent to continue the service and Reuters has stated that it was difficult to pin down how many such facilities are in Alabama.
The bill, HB237 by Rep. Terri Collins, R-Decatur, and SB159 by Sen. Tim Melson, R-Florence, had strong bipartisan support.
On Tuesday, March 5th, the Senate Healthcare Committee approved the bill by a vote of 7-1 with two abstentions. Voting in favor of the bill was the sponsor, Melson, and Republican Senators Tom Butler, Donnie Chesteen, Sam Givhan, April Weaver, and Jack Williams, as well as Democratic Senator Robert Stewart. Republican Senators Dan Roberts and Shay Shelnutt abstained.
Democratic lawmakers proposed bills that would specifically state that embryos held in storage outside a woman’s uterus are not considered children for purposes of state law, directly addressing the Supreme Court’s majority opinion, which determined that the frozen embryos are “extrauterine children.” The Democrats' bills have not come up for consideration as of this writing.
According to one local outlet, AL.com, Collins has stated that the question of whether or not embryos outside of the womb are legally children is one that the legislature will likely have to address at some point in the future.
“I’m not sure what’s needed and we can’t determine that in these five legislative days, we’re trying to solve this problem,” Collins said. “So this is the problem we’re trying to solve right now is to get those families back on a track to be moving forward as they’re trying to have children. That’s what we’re trying to do today. Will we need to address that issue? Probably, yes.”
What this means for IVF treatments in Alabama isn’t clear yet, but it is sure to have wide-reaching effects in other states. We will be closely monitoring this ongoing story as it continues to play out in the courts.
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