MONTGOMERY, Ala. — The Alabama Supreme Court ruled last week that couples who were trying in vitro fertilization and lost frozen embryos in an accident at a south Alabama storage facility can sue under the state’s wrongful death law.
Since then, three providers have paused the often-used fertility treatments while they sort out the legal implications.
The ruling is the first of its kind and extends a theory championed by some anti-abortion groups — that embryos and fetuses should be considered children and be afforded legal protections — into a new realm.
While the decision was narrow, some legal scholars think there’s potential for wider impact.
Here’s a look at some questions and answers about what the ruling could mean.
WHAT DOES THE RULING SAY?
The Alabama Supreme Court said three Alabama couples who lost frozen embryos during an accident at a storage facility could sue the fertility clinic and hospital for wrongful death of a minor child.
The court had previously ruled that couples could sue when a pregnant woman lost a fetus. On Friday, the court said that “extrauterine children” were also covered under the wrongful death law. “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in his opinion.
The court heavily relied on both the wording of the wrongful death statute and language added to the Alabama Constitution in 2018 stating that Alabama protects the “rights of the unborn child.”
DID THE COURT GRANT “PERSONHOOD” TO EMBRYOS?
Mary Ziegler, the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law, said the Alabama ruling didn’t go as far as saying embryos have all the same rights as people — at least not yet.
“The court was pretty clear that they didn’t have to say whether the fetuses or embryos had constitutional rights. They were just saying that for the purposes of this wrongful death law they’re persons or children,” Ziegler said.
However, she said the court’s decision may be read more widely.
“I think people in Alabama are rightly expecting that this is the tip of the iceberg though, and this ruling will lead to more down the road,” Ziegler said.
WHAT WILL THE RULING MEAN FOR IVF IN ALABAMA?
Three IVF clinics in the state announced they were pausing IVF services as they sort out the ruling. Another clinic said it would continue to provide IVF services, but might adjust consent forms for patients, among other possible changes.
Patients at clinics where IVF has been paused scrambled to find other providers.
In the meantime, the legal and practical fallout from the Alabama Supreme Court ruling is unclear.
Greer Donley, an associate professor at the University of Pittsburgh School of Law, said that she expects clinics to offer IVF in Alabama, but believes that they may choose not to store embryos in the state in the future.
Moving them elsewhere could, however, increase the logistical hurdles, cost and risk involved with the process.
WHAT IS THE STATE OF PLAY FOR LEGAL CHALLENGES?
Legal scholars expect more cases to develop on rights for embryos.
It’s also possible that last week’s ruling was the final say on this Alabama case.
State supreme court cases can be appealed to the U.S. Supreme Court — but only when they rely on the U.S. Constitution.
This ruling relies heavily on the Alabama Constitution, including language that the state recognizes the rights of the “unborn.”
ARE LAWMAKERS CONSIDERING ACTION IN RESPONSE TO THE RULING?
Republican state Sen. Tim Melson said he intends to file legislation to protect IVF services in the state. Melson, who is a medical doctor, said the legislation seeks to say that a fertilized egg has legal protections under the statute after it is implanted in the uterus — but not before.
“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available for people who have fertility issues that need to be addressed because they want to have a family,” Melson said.
He said the ruling is an unintended consequence of the language that lawmakers and voters added to Alabama Constitution saying it is state policy to recognize the rights of the “unborn.”
“We need to address it,” Melson said.
WILL THE PERSON WHO CAUSED THE ACCIDENT BE CRIMINALLY CHARGED?
No. At least not under the ruling.
The Alabama case revolves around civil wrongful death claims, not criminal charges over the death of embryos.
Law professor Zeigler said the ruling was limited to the scope of the wrongful death statute. “The court was saying we’re leaving for another day whether this embryo has constitutional rights and whether you could prosecute people who kill embryos for murder.”
WHAT HAPPENS TO EMBRYOS AFTER A DIVORCE?
Currently, they could remain in storage indefinitely. Many embryos do — for myriad reasons.
Even before the Alabama ruling, what to do with embryos that are not implanted was a conundrum, including for people who used IVF to become parents.
Some can’t bring themselves to donate embryos for research or have them destroyed – and don’t want to continue paying storage fees. Thousands are abandoned in clinic freezers already.
What happens as a result of the new ruling is murky, said Rachel Rebouche, dean of the Temple University Beasley School of Law in Philadelphia. She noted that employers sometimes pay to store embryos for employees.
“If you’re in Alabama, is that benefit now meaningless,” she asked, “because if you choose not to implant those embryos, you’re going to be accused of a tort?”
One movement calls for people who don’t plan to use embryos for further pregnancies to do what they call “compassionate transfer” and implant them into women’s uteruses at a time when the pregnancy is unlikely to occur.
