The Alabama Supreme Court ruled Feb. 16 that frozen embryos are “children” for the purposes of a wrongful death lawsuit. The decision reverses two lower court rulings.
The suit involved three couples whose embryos, created through in vitro fertilization (IVF) at a fertility clinic in Mobile, were accidentally destroyed.
“Every unborn life is a human being,” said Liberty Counsel’s Mat Staver in a statement. “Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location.”
The embryos were stored in a cryogenic freezer at the clinic when in December 2020, another patient at the clinic somehow obtained access to the freezer through an unsecured door. The patient removed several embryos, and the subzero temperature of the embryos freeze-burned the patient’s hand. Five embryos dropped to the floor and were destroyed.
Many couples who have trouble conceiving use IVF, a process that combines sperm and egg in a petri dish. The resulting embryos are then either implanted in the woman or frozen. Doctors often create more embryos than necessary to allow for more chances at conception or for future children for the couple. The unused embryos can be stored for years. In this case, the youngest embryo killed had been in storage for four years.
Justices’ opinions
In the majority opinion, Justice Jay Mitchell said both the plaintiffs and the defendants agree on key facts in the case.
“All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” Mitchell wrote. “The parties further agree that an unborn child usually qualifies as a ‘human life,’ ‘human being,’ or ‘person,’ as those words are used in ordinary conversation and in the text of Alabama’s wrongful-death statutes.”
The defendants (the clinic and its parent hospital) and several briefs filed on their behalf argued that the court should create an exception to Alabama’s wrongful-death statutes. Allowing liability in the case of extrauterine children would bring major complications and additional costs to the IVF process and the storage of embryos, they argued.
“While we appreciate the defendants’ concerns,” the ruling states, “these types of policy focused arguments belong before the Legislature, not this Court.”
The one dissenting justice used a similar rationale in his dissent, arguing that the state’s Wrongful Death Act, passed in 1872, “does not address frozen embryos” and it should be up to the Legislature to determine whether the act applies in this case.
“This important ruling has far-reaching implications,” Staver said. “Liberty Counsel is using this precedent to argue that Florida’s proposed deceptive and misleading abortion amendment violates Florida’s own laws that routinely recognize that an ‘unborn child’ has the legally protected rights of a person. Unborn life must be protected at every stage.”
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