Alabama Supreme Court rules frozen embryos are ‘children’

Alabama’s Supreme Court has ruled that frozen embryos are children under state law and subject to legislation dealing with the wrongful death of minor, stating that it “applies to all unborn children, regardless of their location.”

The court issued this majority decision in a lawsuit brought forth by a group of in vitro fertilization (IVF) patients whose frozen embryos were destroyed in December 2020 when a patient removed the embryos from a cryogenic storage unit and dropped them on the ground.

The plaintiffs subsequently filed two lawsuits against the facility, the Center for Reproductive Medicine, alleging that the clinic had violated Alabama’s Wrongful Death of a Minor Act, which applies to unborn children.

The plaintiffs also alternatively alleged negligence on the part of the clinic and sought compensatory damages, though the claims of negligence were specified to only be pleaded if Alabama Courts or the U.S. Supreme Court decided frozen embryos were not children.

The defendant’s motion to dismiss the lawsuits were granted by a trial court that found a frozen embryo did not fall within the “definition of a ‘person’ or ‘child.’” The court also ruled that the plaintiffs could not proceed with their calls for compensatory damages for the loss of a human life and emotional damages, citing longstanding legal standards in Alabama.

In its decision, the Alabama Supreme Court did not address the question of whether “extrauterine children” should be treated as human beings, but did find that state law did not specify what state an unborn child is to be in.

“The relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation,” the court’s decision stated.

The court found that there is no unwritten exception, as the defendants have argued, to the law that applies to “unborn children who are not physically located ‘in utero’ — that is, inside a biological uterus — at the time they are killed.”

The defendants had also argued that considering frozen embryos as children would result in numerous consequences, including making IVF substantially more expensive and preserving embryos more “onerous.”

“While we appreciate the defendants’ concerns, these types of policy focused arguments belong before the Legislature, not this Court,” the ruling stated.

The ruling was issued by Alabama Supreme Court Justice Jay Mitchell, with seven of the other eight justices concurring.

Alabama Supreme Court Justice Greg Cook issued a dissenting opinion.

Cook argued in his opinion that it was not within the role of the court to “expand the reach of a statute and ‘breathe life’ into it by updating or amending it.” He argued the law that was written in 1872 would not have taken into account the status of frozen embryos and to argue that the law does would require an explicit amendment from the state legislature.