This decision could endanger the practice of in vitro fertilization (IVF) and affect hundreds of thousands of patients who depend on this type of treatment
According to a ruling by the Alabama Supreme Court, frozen embryos have the same legal status as people and anyone who destroys them can be sued for wrongful death.
This decision could endanger the practice of in vitro fertilization (IVF) and affect hundreds of thousands of patients who depend on this type of treatment every year.
This is the first decision of its kind and it comes at a time when 11 states have already expanded the definition of “personhood” to include fertilization in their state laws, as reported by the reproductive rights group Pregnancy Justice, and many other states are considering more limits on abortion and reproduction, making this a key issue for the 2024 elections.
The U.S. Supreme Court will also rule this term on whether to restrict access to an abortion drug, the first time the highest court will address this issue since it reversed Roe v. Wade in 2022.
The Alabama case involved a patient who accidentally dropped and broke other couples’ frozen embryos and was sued for wrongful death.
The court decided that the patient could be sued, stating that it had always held that “unborn children are ‘children’” and that this also applied to frozen embryos, granting fertilized eggs the same protection as infants under the Wrongful Death of a Minor Act.
“It applies to all children, born and unborn, without limitation,” the court wrote. “It is not the role of this Court to create a new limitation based on our own view of what is or is not wise public policy. “This is especially true where, as here, the People of this State have adopted a Constitutional amendment aimed directly at preventing courts from excluding ‘unborn life’ from legal protection,” it added.
The court reversed a lower court ruling that had dismissed the lawsuit because it said the embryos did not meet the criteria of a child.
In the past, anti-abortion activists and legislators have attempted to outlaw the destruction of embryos, but no other state supreme court has ruled on this issue in this way. In Tennessee, for example, an anti-abortion activist told Republican lawmakers to wait a few years before discussing IVF and how to regulate it, according to a recording obtained by ProPublica.
Kansas, among other states, has considered a bill that would prohibit destroying embryos, but that bill failed in committee. The effort to define personhood has even impacted tax law: Georgia now recognizes an “unborn child” as a dependent after six weeks of pregnancy.
In Alabama, voters passed a ballot measure in 2018 that gave fetuses full personhood rights but did not mention frozen embryos. After Roe was overturned, a nearly complete ban on abortion took effect in the state. Alabama now accounts for almost half of all pregnancy-related criminal cases nationwide, according to a count by Pregnancy Justice.
Abortion rights advocates say the ruling is the “logical” next step for the anti-abortion movement in its quest to broadly define human life.
They note that the court’s finding could have national consequences for fertility treatments such as IVF – the medical procedure in which doctors take eggs from the ovaries and fertilize them with sperm outside the body, creating embryos that can be later transferred to the uterus – or even birth control.
To give a patient the best chance at pregnancy, Sussman said multiple embryos are created in case a patient needs to try again if a pregnancy attempt fails. As a result, many eggs are often fertilized and stored frozen. After a patient gets pregnant, deciding what to do with the remaining embryos can be a painful choice.
The Alabama ruling could make that choice harder, as parents or clinics wonder whether disposing of fertilized eggs could make them liable for punitive damages, advocates said.
