Groups file request asking Alabama Supreme Court to rehear embryo ruling

By Isabel Rosales and Susannah Cullinane, CNN

(CNN) — Groups representing defendants in the lawsuits that culminated in the Alabama Supreme Court ruling that frozen embryos are children have filed an application asking the court to rehear the case, according to court records.

In its ruling – stemming from two lawsuits over the destruction of frozen embryos at a Mobile hospital – the state Supreme Court said embryos are children, no matter if they’re within or out of a uterus, and those who destroy them can be held liable for wrongful death. The decision put back into national focus the question of when life begins as advocates warned of chilling effects on infertility treatments.

The defendants in the lawsuits — Center for Reproductive Medicine and the Mobile Infirmary – filed an application and brief with the state’s Supreme Court to rehear the case, and the Medical Association of the State of Alabama and the Alabama Hospital Association filed a brief Friday supporting the request for a rehearing, according to online records from the Alabama appellate courts.

Reconsideration is not typically granted, but the ruling has been contentious, with lawmakers scrambling to pass bills aimed at protecting in vitro fertilization as IVF clinics began pressing pause on parts of treatments.

The ruling alarmed health care providers and reproductive rights advocates, who warned it will send liability costs skyrocketing for IVF clinics and make it more difficult for parents struggling with fertility to have babies.

An Alabama court source told CNN that the group is asking the court to reconsider their ruling, and after reading the briefs, the justices could take more than six weeks before deciding whether to grant the application to rehear the case.

The groups filed for rehearing on the final day of their 14-day window following the court’s ruling, the court source said.

How the ruling came to be

The first-of-its-kind ruling came after two lawsuits filed by three sets of parents who underwent IVF procedures to have babies and then opted to have the remaining embryos frozen.

The parents allege in December 2020 that a patient at a Mobile hospital walked into the fertility clinic through an “unsecured doorway” and removed several embryos from the cryogenic nursery, the ruling says. The patient’s hand was “freeze-burned” by the extremely low temperatures the embryos were stored in and the patient dropped them on the floor, killing them, according to the ruling.

The parents sued for wrongful death, but a trial court dismissed their claims, finding the “cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child,’” according to the ruling.

But the state Supreme Court disagreed, stating “extrauterine children,” or those “located outside of a biological uterus at the time they are killed,” are covered under the state’s Wrongful Death of a Minor law.

In 2018, a key constitutional amendment was passed in Alabama declaring that “it is the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.”

Although the amendment was passed to restrict abortions, the Alabama Supreme Court pointed to that 2018 measure to recognize embryos as persons under state law, saying the amendment allowed for a more expansive view of the law at issue in the case.

“When it comes to the Wrongful Death of a Minor Act, that means coming down on the side of including, rather than excluding, children who have not yet been born,” the ruling reads.

The court’s decision prompted IVF clinics in Alabama to pause parts of treatments and left many families in limbo.

In vitro fertilization is a common treatment for couples struggling with fertility issues, and about 2% of the US population was conceived using IVF.

During the treatment, an egg is removed from a woman’s body and fertilized with sperm inside a laboratory before being implanted into a woman’s uterus in hopes of leading to pregnancy. The embryos can be frozen for genetic testing or to keep them viable for future use.

Alabama lawmakers have raced to respond to the state Supreme Court’s ruling, with the Alabama House and Senate each passing bills Thursday aimed at protecting in vitro fertilization.

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CNN’s Devon M. Sayers, Shirin Faqiri, Eric Levenson and Christine Maxouris contributed to this report.