Family Law

5 Things You Should Know About The Alabama Declaration That Embryos Are People

The Alabama ruling is painful, and portends uncertainty.

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frozen embryo human embryos cryopreservationUnless you’ve managed to avoid all news sources recently, as well as the social media memes, and even Saturday Night Live, you are probably aware that on February 16, 2024, the Supreme Court of Alabama ruled that embryos are “children” for purposes of plaintiffs having a viable claim under the Alabama Wrongful Death of a Minor Act.

But what does that mean?

In the case of LePage v. Center for Reproductive Medicine, the Alabama Supreme Court heard the consolidated cases of multiple patients who lost embryos in the same bizarre incident. Each of the three sets of parents had undergone IVF with the defendant fertility clinic, and each had embryos cryopreserved in a storage tank — or, as the court called it, a “cryogenic nursery.”

So how were the embryos destroyed? In December 2020, “a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos.” Hmm. The subzero temperatures at which the embryos had been stored — embryos are stored at an intense, subarctic, minus-320 degrees Fahrenheit — “freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor.”

Notably, each of the patients had signed clinic consent forms electing that under certain conditions — such as if an embryo “had remained frozen longer than five years” — to have the embryos destroyed. Of course, they weren’t destroyed yet, and the patients still had their embryos stored for possible potential use. So when the embryos were destroyed, they brought claims for “wrongful death,” and asserted that the embryos were “extrauterine unborn children” with the same rights as, like, regular children.

1. Why Wasn’t This Just A Negligence Case?

Let’s address the embryo in the room. Yes, the clinic absolutely should have secured the door to the room where the embryos were stored. That seems like a glaring problem in this fact pattern where bad facts can make bad law. But why wasn’t this just a straightforward case about the clinic’s negligence in meeting industry standards in the safeguarding of its patients’ reproductive tissue?

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The plaintiffs, to their credit, tried! Each of the plaintiffs brought claims in negligence or wantonness as to the destruction of the embryos. However, those claims were shot down by the trial court. Specifically, the court reasoned that, “to the extent those claims sought recovery for the value of the embryonic children, the claims were barred by Alabama’s longstanding prohibition on the recovery of damages for loss of human life.” And, to the extent the claims sought emotional-distress damages, the trial court said that they were barred by traditional limits to the Alabama’s “zone of danger” test, which “limits recovery for emotional injury only to plaintiffs who sustained a physical injury … or were placed in immediate risk of physical harm.”

So while most legal scholars in this area strongly disagree that embryos are “children,” this problem seems to arise specifically because there are often no other good paths forward when patients have experienced negligent loss of their reproductive material. One authority, law professor Dov Fox, has long pointed this out, and argued that our judicial system needs a new claim, “Reproductive Negligence.”

But here, with no claim for reproductive negligence available, and a lack of success with negligence and wantonness, the plaintiffs’ attorneys got creative — if embryos are really children, then letting those embryos be destroyed must be manslaughter, said plaintiffs.

2. Have Other Countries Really “Figured Out The Ethical Issues”?

In a special concurring opinion, the Alabama Supreme Court’s Chief Justice Parker went all in on personhood. The concurrence is replete with Bible quotes, for instance. He also gets over his skis at points, making some basic errors about IVF around the world. As one example, Parker wrote that “in Australia and New Zealand, prevailing ethical standards dictate that physicians usually make only one embryo at a time.” But I checked with Australian assisted reproductive technology law attorney Sarah Jefford, and she confidently rejected that assertion as “absolutely not correct.” She noted that when she went through fertility treatments herself in Australia, for instance, she made 15 embryos in one go. Not one at a time.

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Jefford further explained that the court was likely referring to Australia’s Prohibition on Human Cloning legislation, which essentially says that patients shouldn’t make more embryos than they intend to use. However, in practice, of course, Jefford explained, medical providers make more embryos than patients intend to use, knowing the total starting number will include embryos that aren’t as likely to thrive. And specialists can never predict how many eggs will be collected, even on a low-dose medication protocol.

3. Will This Case End Up Before The United States Supreme Court?

With this decision coming from the highest court in Alabama, there is nowhere to appeal to, right? That’s true, at least within the Iron Bowl State. So what is the likelihood of this case heading to the U.S. Supreme Court?

For this question, I checked with constitutional law professor Kate Shaw, who is also co-host of the Supreme Court-focused podcast Strict Scrutiny. “Neither the Alabama case, nor any other case decided primarily under state law, is likely to end up before the U.S. Supreme Court — even if these cases should raise concerns under the federal Constitution’s Establishment Clause. But some of the logic in the Alabama case is arguably present in two of the cases the Court will hear later this term — one regarding the abortion drug mifepristone, and one regarding the federal EMTALA statute — and those cases may give us some sense of the justices’ receptivity to these claims.” For more thoughts on this case from Shaw and her podcast co-hosts, as well as their new segment on tracking fetal personhood issues, check out their latest Strict Scrutiny episode.

Of course, we know at least one U.S. Supreme Court Justice has expressed opposition to IVF. So even if there were a hook to get this case to the Supreme Court, it’s not clear that it would be a good idea to send it their way.

4. I Don’t Need To Worry About This If I Don’t Suffer From Infertility, Right?

There are nine justices on the Alabama Court, and there was one dissent and one partial dissent with respect to the majority opinion. These dissenting justices flagged the “disastrous consequences” of their ruling. And they were right. Fertility clinics in the state immediately paused IVF treatments indefinitely in reaction to the opinion.

Given the swift blowback across the political divide, there is a hope that the Alabama state legislature will right the boat through legislation. But regardless of that success, the judicial finding that embryos are children is a dangerous one — one that removes or severely limits effective fertility treatment options, as well as the hope for parenthood for many. And, taken to its logical conclusion, the court’s decision also creates severe uncertainty across a wide number of areas. What about embryos that are still frozen? Must they be transferred to a (willing?) host, to give them a chance to be born? Can couples who no longer want children or additional children have their embryos destroyed? If there is a fire in a clinic, will the embryos need to be saved first, since otherwise thousands of lives will be lost?

The U.S. Donor Conceived Council — a nonprofit organization that has called for regulation in the best interests of those conceived from fertility practices — finds this to be the wrong path forward. “The court’s decision is likely to harm not only patients but also gamete donors and donor conceived people by, for example, possibly requiring embryo donation as the only legal means of embryo disposition,” said USDCC Vice President Tyler Levy Sniff.

If the decision effectively forces patients to donate their embryos — such as when a patient becomes unable to gestate their stored embryo, or to afford a surrogate — the donation would of course result in the patient’s genetic child being raised by others. That’s a situation that can be beautiful in a consensual and open environment. But there’s something intuitively disturbing about putting individuals to the choice of having someone else raise their genetic children or subjecting people to liability for the death of their embryonic “children.”

5. What Can Be Done?

If you are concerned, consider supporting the nonprofit organization RESOLVE: The National Infertility Association. RESOLVE provides numerous ways to show support for access to family-building options. This includes a Federal Advocacy Day — this year scheduled for May 14, 2024 — where participants meet with their senators and representatives to share their stories and express their views.

Further, RESOLVE is supporting the Access to Family Building Act which, if passed, would protect access to family-building tools, like IVF, through the United States. While that legislation was initially sponsored by two Democrats, we may find more bipartisan agreement going forward.

In sum, the Alabama ruling is painful, and portends uncertainty. But if it’s the catalyst that alerts people to the issue and pushes fertility care protections through on the national level, there may yet be a silver lining.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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