Alabama Supreme Court establishes egg personhood

"The main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization in Alabama.”

Feb 19, 2024

In a 7-2 ruling on Friday, the Supreme Court of Alabama established legal personhood for cryogenically-frozen fertilized eggs. According to the court, these “extrauterine children” are protected by Alabama’s Wrongful Death Act and the state’s constitution. The court’s decision endangers IVF access for thousands of Alabamians.

The ruling stems from a wrongful death lawsuit filed against a hospital and a fertility clinic by three couples (each of whom has two born children from utilizing IVF), LePage v. Mobile Infirmary Clinic, Inc. In September 2023, Law and Crime summarized the events that lead to the lawsuit:

Attorneys for the plaintiff couples allege that on December 20, 2020, a patient at the Mobile Infirmary hospital wandered the hospital’s facilities and came upon the fertility clinic. They say that the embryology laboratory, in which cryopreserved human embryos were stored was negligently left unlocked and unmonitored. The wandering patient, “at some point, removed Plaintiffs’ (and other patients’) embryonic children from the cryopreservation unit that was sustaining their lives,” detailed the complaint.
According to the allegations, when the patient picked up the embryos with his bare hands, he was burned by the embryos that were kept at subzero temperatures. The patient then “drop[ped] the cryopreserved embryonic human beings on the floor where they began to slowly die,” according to the filing.
“By the time the embryonic human beings were discovered by CRM staff, the embryos of six different patients, including two of the LePages’ embryonic children and two of the Fondes’ embryonic children, had died,” said the document.

The lawsuit hinged on whether a blastocyst (referred to as an “embryo” in the field of in vitro fertilization) is considered a “minor child” under Alabama’s Wrongful Death Act, enacted in 1872. A mobile judge dismissed the wrongful death lawsuit in 2022, but the couples appealed to the state’s Supreme Court. “Attorneys for the families, James and Emily LePage, William Tripp Fonde and Caroline Fonde and Felicia Burdick-Aysenne and Scott Aysenne, said Alabama law recognizes human life as beginning at the moment of conception, when sperm fertilizes an egg.” [1]

“This appeal presents this Court with the opportunity to lead the Nation ... in proclaiming that all human life is precious from the moment of conception and that remedies do indeed exist for the wrongful deaths of human embryonic children,” the LePage brief states. [2] “Each embryonic child destroyed was special and unique,” attorneys argued in the brief. “Each human life destroyed can never be recreated. Each life taken has forever been lost to the Plaintiffs and the world.” [3]

In its brief to the state supreme court, the fertility clinic “pointed out that the plaintiffs did not include claims that would have been a more obvious fit for their lawsuit: those for breach of contract and bailment against the clinic. Any loss of those embryos would clearly have given rise to claims against the clinic in contract and property law — but the couples chose not to raise any such claims.” [4]

The Medical Association of the State of Alabama (MASA) intervened in the case. In a brief, MASA noted that the Appellants (the couples who filed the lawsuit and appealed to the Alabama Supreme Court) “do not even contend they intended to use the cryogenically-stored embryo at issue.” MASA also called attention to the following facts:

🟩 The Appellants consented to dispose of abnormal embryos for “quality control and training purposes before they are discarded.” Certainly, the Appellants would not have agreed to dispose of such an embryo if they believed doing so would constitute a wrongful death.
🟩 The Appellants also signed a “Disposition of Embryos” in which they directed the Center for Reproductive Health to “destroy the frozen embryos” in the event the Appellants no longer wished to pay storage fees.
🟩 Surely, the Appellants would not have agreed to the potential destruction of their remaining frozen embryos if they viewed this choice as killing their unborn children. In fact, contrary to the Appellants’ current position, the Appellants did not consider in vitro embryos in cryogenic storage as enjoying the same rights as an embryo developing in utero during the course of pregnancy when the Appellants initially underwent IVF treatment.
🟩 Appellants entered a “Disposition of Embryos” Agreement with the Center for Reproductive Medicine, whereby the Appellants agreed their embryos would be cryopreserved for five years after which they would be destroyed.

MASA also warned that a ruling in favor of the Appellants would endanger IVF in Alabama. “The risk of wrongful death liability in these situations would substantially increase the costs of IVF and thereby deny many Alabamians access to IVF. Not only would the cost of IVF become prohibitive, but women with a higher risk of failure of IVF or complications from IVF might be denied access to IVF treatment entirely,” MASA said in its brief. “It would be tragic for this Court to issue a ruling that increases the wrongful death liability exposure of fertility specialists such that women with a lesser chance of successful IVF treatment are denied the opportunity to participate.” MASA argued, “The increased exposure to wrongful death liability as advocated by the Appellants would – at best – substantially increase the costs associated with IVF. 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. Such a result would jeopardize Alabamians’ access to IVF which may be the only option for many who hope to become parents to biological children. Alabama citizens would thus be deprived of the most effective infertility treatment. Cancer patients in Alabama would no longer have access to reliable fertility preservation. Couples who need or desire to freeze their embryos for subsequent implantation would no longer have this option. Fertility specialists would practice elsewhere because the most effective form of IVF would no longer be feasible in Alabama. This Court can avoid these detrimental consequences by upholding the trial court’s dismissal of the Appellants’ tort claims.”

In 2018, Alabama passed a Sanctity of Life amendment to the state’s constitution establishing fetal personhood. The following text was added to the state’s constitution:

(a) This state acknowledges, declares, and affirms 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.
(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.
(c) Nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.

In a concurring opinion agreeing with the Supreme Court of Alabama's Friday ruling, Chief Justice Tom Parker amplified the Sanctity of Life amendment’s application to cryogenically-frozen fertilized eggs. His argument is more akin to a sermon one would hear at a fundamentalist church than a standard legal opinion. Parker wrote:

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

In a dissenting opinion, Associate Justice Greg Cook criticized the majority’s ruling. “There is no doubt that the common law did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability. In fact, for 100 years after the passage of the Wrongful Death Act, our case law did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a ‘minor child’ who could be killed.”

Cook also emphasized the repercussions of the ruling on IVF in Alabama. “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,” he wrote. According to Cook, “The main opinion's holding will mean that the creation of frozen embryos will end in Alabama. No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.”

Cook also highlighted the effects the ruling will have on Alabamians. “There is no doubt that there are many Alabama citizens praying to be parents who will no longer have that opportunity. And, there is no doubt that there will be fewer babies born.” Cook noted that “[t]he Chief Justice's special concurrence does not dispute that this will lead to fewer newborn babies.” Ending the creation of frozen embryos, Cook wrote, “will undoubtedly cause significant consequences that will affect the future lives of thousands of Alabama citizens for years to come.”

The American Society for Reproductive Medicine today released a statement decrying the court’s ruling. The statement read, it part: “If the policy outcomes mandated under this decision stand, the consequences will be profound. Modern fertility care will be unavailable to the people of Alabama…”

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