In unprecedented decision, Alabama’s Supreme Court ruled frozen embryos are children. It could have chilling effects on IVF, critics say

By Christina Maxouris, CNN

(CNN) — In a first-of-its-kind ruling, Alabama’s Supreme Court said frozen embryos are children and those who destroy them can be held liable for wrongful death – a decision that puts back into national focus the question of when life begins and one that reproductive rights advocates say could have a chilling effect on infertility treatments and the hundreds of Alabamians who seek them each year.

And, critics say, the ruling could soon have consequences nationally as other states could attempt to define embryos as people. Already, one religious group is using the Alabama ruling as precedent in a Florida abortion rights case.

“This is part of a long and strategic march towards entrenching this ideology of fetal personhood, that is at the heart of controlling pregnant people, their decisions and their birth outcomes,” Dana Sussman, the deputy executive director of legal advocacy group Pregnancy Justice, told CNN.

The Alabama ruling, which was released Friday, stems from two lawsuits filed by three sets of parents who underwent in vitro fertilization (IVF) procedures to have babies and then opted to have the remaining embryos frozen.

The parents allege in December 2020, a patient at the Mobile hospital where the frozen embryos were being stored walked into the fertility clinic through an “unsecured doorway,” and removed several embryos from the cryogenic nursery, the state’s Supreme Court ruling said. 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 in a stunning reversal last week, the state Supreme Court disagreed, noting “extrauterine children” – or, unborn children “located outside of a biological uterus at the time they are killed” – are children, and they are covered under the state’s Wrongful Death of a Minor law.

An attorney for one of the couples told CNN the case is solely about accountability for the parents whose embryos weren’t kept safe by the clinic, and the state Supreme Court’s ruling offers them a way forward for justice.

Though the court’s decision does not prohibit IVF, it’s the first known case in which a US court says frozen embryos are human beings, and that could have profound impacts on how the fertility industry in Alabama operates, critics warned.

They say it could send liability costs skyrocketing, making fertility treatment prices prohibitive for many families; it could discourage medical providers from performing infertility treatments in fear of being held liable each time an embryo does not turn into a successful pregnancy; and it could mean parents will now be forced to pay for lifelong storage fees of embryos they will never be allowed to discard, even if they don’t want any more children.

“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,” Alabama Supreme Court Justice Greg Cook wrote in the sole full dissenting opinion.

“There is no doubt that there are many Alabama citizens praying to be parents who will no longer have that opportunity,” he added.

What the court’s ruling says

The state Supreme Court’s decision centers on whether frozen embryos are covered under the Alabama Wrongful Death of a Minor Act, which allows parents to sue for punitive damages when their child dies.

At the heart of that question is whether those embryos should be considered children.

In its majority opinion, the court ruled they should, noting Alabama residents voted in 2018 to amend the Constitution to include protections for unborn life. Whether that unborn life is physically in or out of a uterus shouldn’t matter, it said.

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred,” Chief Justice Tom Parker wrote in his concurring opinion. “We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.”

The defendants in the case – the fertility clinic, the hospital and its owner – argued creating wrongful-death liability for frozen embryos would substantially increase the costs of the treatment and could make the preservation of the embryos “onerous” for Alabama families. CNN reached out to representatives of the defendants but has not heard back.

The Alabama Medical Association, which also weighed in prior to the court’s decision, warned such a ruling would create an “enormous potential for civil liability” for fertility specialists, because embryos can be damaged or become unsuitable for pregnancy at any time during an IVF process, including when they are being thawed.

And the ruling could mean parents cannot opt to discard embryos, which happens for a number of reasons, including divorce or the death of one of the two, the association said.

That would cause “embryos to remain in cryogenic storage even after the couple who underwent the IVF treatment have died and potentially even after the couple’s children, grandchildren, and even great grandchildren have died,” the state’s medical association wrote in an amicus brief.

“This absurd result would be the outcome if this Court extends the wrongful death liability to the destruction of cryopreserved embryos,” the association added.

Alabama’s Supreme Court ruled those questions belong with lawmakers and that the Wrongful Death of a Minor Act is clear in that it includes “all children, born and unborn, without limitation.”

Trip Smalley, an attorney representing one of the couples, told CNN Tuesday the parents were “devastated” by the destruction of their embryo and simply sought a way to be able to hold the fertility clinic accountable. Any policy issues that may arise from the ruling should be taken up by lawmakers, he said.

“Our goal is simply to provide a measure of relief to my clients for the facts of this particular case and the wider-ranging policy fallout, I think it’s just too early to know what that will be,” he said.

“What we can’t have is a situation where these clinics are not subject to civil justice,” Smalley added. “How that justice is imposed does present difficult decisions.”

The case will be sent back to the lower court and the parties will prepare for trial, Smalley said.

Dozens of Alabama patients worried

IVF is a method of assisted reproduction that involves removing eggs from the ovaries and fertilizing them with sperm outside the body. The resulting embryos are then typically placed in a person’s uterus in hopes they spur a successful pregnancy.

“The goal is to actually create as many embryos as possible because that gives you the greatest chance at a pregnancy,” said Barbara Collura, president and CEO of the patient advocacy organization RESOLVE: The National Infertility Association.

That often means there are remaining embryos that are frozen and stored in fertility clinics or cryopreservation centers for several hundred dollars annually.

Once families decide they don’t want any more children, they have several options for those embryos, including to discard them or donate them to research or another family, Collura said. Last week’s ruling could take some of those options off the table, she told CNN.

“We have a lot more questions than we do answers,” Collura said. “Will people be able to have rights over their embryos?”

“People who are already in the midst of (infertility treatments) or who’ve already done IVF in this state and have frozen embryos, what’s the status of those embryos? What can they do with them?” she added. “We just don’t know.”

Dr. Mamie McLean, with Alabama Fertility Specialists, which offers reproductive care in the state, told CNN she’s already heard from more than 30 patients since the ruling who are worried they won’t have control over what happens to their frozen embryos.

“We worry that if this ruling and its worst case becomes true, that we will be limited in the ability to keep frozen embryos in the state of Alabama, which will make fertility care riskier and more expensive for patients, and ultimately limit the access to care that women in Alabama have.”

“Patients are worried,” she added. “This is adding anxiety and stress to patients who are already going through a lot to build their families.”

Doctors are worried too, McLean said: “We’re worried that if this ruling stands, that fewer babies will be born in Alabama.”

About 1 in 4 married women in the United States ages 15 to 49 without prior births has difficulty getting pregnant, the US Centers for Disease Control and Prevention said. And roughly 1 in 6 adults globally experience infertility, according to the World Health Organization.

Religious freedom group uses Alabama ruling as precedent in Florida abortion case

The Alabama Supreme Court’s decision will make modern fertility care inaccessible for the state’s families, reproductive medicine advocates say.

“No healthcare provider will be willing to provide treatments if those treatments may lead to civil or criminal charges,” American Society for Reproductive Medicine President Dr. Paula Amato said in a statement.

“Young physicians will choose not to come to the state for training or to begin their practice,” Amato said. “Existing clinics will be forced to choose between providing sub-optimal patient car or shutting their doors.”

Others say they worry the ruling creates a road map that groups and legislators across the country who have previously targeted fertility treatments can now follow.

Liberty Counsel – a nonprofit that says it works to advance “religious freedom, the sanctity of human life and the family” – said it is using the Alabama ruling as a precedent to argue a proposed amendment in Florida aiming to protect abortion rights will take away “a protected right to life for the unborn.”

“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,” Liberty Counsel founder and chairman Mat Staver said in a statement.

“This important ruling has far-reaching implications. 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,” Staver said.

Collura, with RESOLVE, told CNN she worries about how similar groups may use the ruling.

“You now have a Supreme Court very emphatically say that a frozen embryo is a person and we’re going to see now other states trying to codify that,” Collura said.

“Mark my words: I am absolutely sure that this is what is going to be our future for IVF in the United States.”

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