In a bizarre ruling, the Alabama Supreme Court recently held that frozen embryos are children for purposes of the state’s wrongful death statute. In short, the court concluded in LePage v. Center for Reproductive Medicine that embryos created and preserved for in vitro fertilization (IVF) are children for the purposes of the Wrongful Death of a Minor Act, and that the parties whose gametes were accidentally thawed can sue for wrongful death. They are endowed, in other words, with full personhood despite never having seen the inside of a uterus, much less drawn a breath or seen the light of day. The opinion is little more than a page ripped from the anti-abortion playbook—and bears little resemblance to a judicial opinion. However, this court is not the first to entertain fetal personhood arguments.
This ruling is the outgrowth of the anti-abortion movement’s efforts to establish fetal personhood under the law, the ultimate goal of the movement since before Roe. In fact, Texas asked the U.S. Supreme Court to establish constitutional fetal personhood in Roe v. Wade. Although the Court expressly rejected the theory then, the Supreme Court reversed its position on abortion forty-nine years later and overturned Roe in Dobbs v. Jackson Women’s Health Organization (2022) (discussed in more detail here). The Dobbs Court did not have reason to reach the fetal personhood argument, but the holding in Roe that an embryo or fetus is not a person for Fourteenth Amendment purposes is no longer good law. That doesn’t mean that an embryo or fetus is a person under the Fourteenth Amendment, but it does mean that courts could interpret the Constitution that way in future cases. And if people who are pregnant have no federal constitutional right to an abortion, then there is no direct federal-state conflict if a state were to recognize fetal personhood. And, as the litigants discovered in the Alabama case, the post-Dobbs judiciary today is far more open to the idea.
What some anti-abortion proponents might not realize, however, is how fetal personhood can upend rights people have taken for granted—and may be sad to lose. It is not, for example, a stretch to say that this recent opinion may cause fertility treatment centers in Alabama to close their doors.
Flirtations with Fetal Personhood
While Roe was in place, the flirtations with fetal personhood were real but unlikely to lead very far because of the federal constitutional protection for abortion. But the post-Roe landscape is quite different, and we are seeing renewed efforts to push the fetal personhood agenda in courts.
In March 2023, the Oklahoma Supreme Court ruled that the state constitution protected a limited right to abortion. Oklahomans have the constitutional right to an abortion, but only in life-threatening situations. However, the dissenting justice embraced a fetal personhood theory. Justice John Kane argued that drawing the line at “life-threatening” did not resolve the abortion issue because it “wholly disregards the interest of the unborn.” Kane worried that “The unborn have no voice, say, or consideration in the opinion of the majority.” Instead of protecting the right in this instance, Kane argued, there must be a debate of “balancing the developing life of the unborn against the life of the mother,” suggesting that the death of a pregnant person may be an acceptable consequence of keeping a fetus alive.
Fetal personhood has also been the subject of many political fights in Ohio, including multiple efforts to enshrine fetal personhood in state statutes or the state constitution. But, in 2023, a new constitutional amendment put an end to that effort because it gives Ohioans the right to “make and carry out one’s own reproductive decisions,” including but not limited to decisions about “abortion, contraception, fertility treatment, miscarriage care, and continuing pregnancy.” Although the new Ohio constitutional amendment bars the chance of fetal personhood in the state, those who believe in it will continue to find ways to push that agenda. A woman in Ohio was recently arrested for “abuse of a corpse” after she miscarried at home and did not dispose of the fetal tissue as if it were a human corpse. She was ultimately not indicted by the grand jury, but this case is a cautionary tale about the havoc that can be wreaked by an unchecked quest to endow embryos and fetuses with full personhood status.
The federal judiciary has also been asked to resolve fetal personhood theories. In April 2023, Federal District Court Judge Matthew Kacsmaryk stayed the FDA’s approval of the medication abortion drug Mifepristone. (For more on this indefensible ruling, see here.) In his ruling, Kacsmaryk dropped multiple nods to the idea of legal fetal personhood. Kacsmaryk began by explaining in a footnote that he would not use the term “fetus” in his opinion. He claimed that jurists inappropriately use the word “fetus,” which according to him, refers only to one of many stages of gestation. Instead, he used the terms “unborn human” and “unborn child.” Kacsmaryk argued that there is “individual injustice and irreparable injury” done to the aborted “unborn humans” from people’s use of medication abortion. Kacsmaryk characterized medication abortion as starving and extinguishing the “unborn human.” To support his point, Kacsmaryk cited an amicus brief that argued that fetuses are people entitled to equal protection under the Constitution; “Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt [the] theory of life that States are required to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.”
When Flirting Isn’t Enough: The Alabama Supreme Court’s Full Embrace of Fetal Personhood
However, the Alabama Supreme Court’s opinion blows Justice Kane’s and Judge Kacsmaryk’s rhetoric out of the water. The case involves the potential application of the state’s Wrongful Death of a Minor Act, which provides a cause of action to parents whose child is wrongfully killed, to the accidental destruction of frozen embryos held by a fertility clinic. The majority opinion, written by Justice Jay Mitchell, opens with this inflammatory and strange description of the question before the court:
The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed.
He then answers the question as bizarrely as he poses it: [T]he answer to that question is no: The Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” The only difference between a living, human child and an unimplanted embryo, in Justice Mitchell’s view, is its “location.” This tells us much of what we might want to know about where this opinion is going.
The facts underlying this case are unfortunate. Three couples suffering from infertility had worked with the clinic to prepare for IVF, which entails harvesting eggs from a woman and fertilizing one or more of them with sperm in a lab. The resulting embryos are then frozen and preserved until a patient is ready to have them implanted. They can stay frozen for years, even decades, and still be used to attempt a pregnancy as long as they are thawed properly. In this case, however, a patient at the hospital where the embryos were stored wandered into the fertility clinic and removed several embryos—but dropped the vial they were in because of the impact of the sub-zero temperature on the patient’s hand. By dropping the vial, the patient did not just ruin or destroy or render unusable the embryos it contained. In Justice Mitchell’s words, the patient dropped “the embryos on the floor, killing them.”
The couples later brought lawsuits against the fertility clinic, alleging a violation of the Wrongful Death of a Minor Act based on the loss of the embryos for their use in fertility treatments. The trial court dismissed their claims, concluding that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child.’” The loss, therefore, was not “wrongful” or actionable within the meaning of that statute.
The Alabama Supreme Court reversed the dismissals, holding that the “relevant statutory text is clear” that the wrongful death of a minor statute “applies on its face to all unborn children, without limitation.” What follows is an illogical stream of reasons, along with a healthy dose of smoke and mirrors, which together lead the court to a truly bizarre conclusion.
The majority begins by noting a “weighty concern” of the plaintiffs: if being a “child” necessitates coming from a “biological womb,” then “even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a ‘child.’” Huh? Never say never, but there is no evidence that ectogenesis is coming soon. Scientists have struggled for decades to figure out how to create a womblike environment that might enable continued gestation for a premature infant—and even that has yet to come to pass. There is certainly no scenario in which a toddler exists and yet has never touched a womb. But the majority poses this possibility to detach pregnancy from wombs and to make the comparison between embryos and human children less forced.
The majority claims that textual language is “clear” and then resorts to the dictionary (actually four dictionaries) to explain its meaning. It then resorts to non-helpful observations like the fact that a person who is pregnant is sometimes referred to as being “with child”—why would we say that if “child” did not include all the stages of human development from blastocyst to newborn? After all, the court notes, it is the public policy of Alabama to “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” This language is from Article 1, Section 36.06(b) of the Alabama Constitution, in a section titled the “Sanctity of Unborn Life.” It has no obvious relevance to the interpretation of the wrongful death law, but the majority was undeterred.
After the tour of online dictionaries, sprinkled with a few quotes from Blackstone and quotes from a handful of unrelated cases, the court pronounces its work complete. “The upshot here,” the majority writes, “is that the phrase ‘minor child’ means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: ‘an unborn or recently born’ individual member of the human species, from fertilization until the age of majority.” The court never discusses the wrongful death statute itself, its underlying policies or purposes, or the consequences of construing the statute in this odd way. Rather, it simply concludes that there is nothing about the law that “narrows that definition to unborn children who are physically ‘in utero.’” It refers to the difference between a frozen embryo and a living human child as a matter of “ancillary characteristics.”
The majority chides the defendant for seeking “an unwritten exception for extrauterine children,” as if that phrase is anything but nonsensical. The court then chides the defendant for pointing out the obvious impact of a ruling for the plaintiffs on the ability to conduct IVF in Alabama. After all, the court lectures, “judges are required to conform our rulings ‘to the expressions of the legislature, to the letter of the statute,’ and to the Constitution, ‘without indulging a speculation, either upon the impolicy, or the hardship, of the law.’” And yet, the majority does quite the contrary. Although it refers to the statutory text as “sweeping and unqualified,” the only relevant word in the statute is “child.” And while the majority says it is obvious that word includes “all children, born and unborn, without limitation,” there is simply no support for that interpretation. The majority realizes this and thus relies on conclusory framing rather than analysis.
Chief Justice Parker’s Concurrence: Theocracy, Here We Come
Chief Justice Parker writes separately to explain why embryos and fetuses are no different from children under Alabama law. The “Sanctity of Unborn Life” language in the state constitution was adopted in 2022. According to Chief Justice Parker, that expression of state policy must guide every judicial act of interpretation.
Like Justice Mitchell, Chief Justice Parker also consults the dictionary. But instead of looking up the word “child,” he looks up the definition of “sanctity.” He finds that it means “1. Holiness of life and character: GODLINESS; 2 a: the quality or state of being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations, or rights.” He then rejects the idea of “inviolability” because it has “secular connotations” and concludes that the people of Alabama chose “sanctity” because of its religious meaning. And he then treats the fine people of Alabama to a long sermon on why human life must be protected “from the earliest stages of development” because man was created “in the image of God.” Indeed, he argues, all legal restrictions on the taking of human life are rooted in the Christian bible. He then says the quiet part out loud:
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destructions of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life—that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.
And that is the reason that he believes frozen embryos are children.
Although Parker’s rhetoric is shocking to those familiar with the Establishment Clause of the First Amendment, his and Justice Mitchell’s opinions raise important questions about the stakes of fetal personhood. Of course, constitutional fetal personhood would lead to states passing total abortion bans and perhaps prosecuting pregnant people—instead of only their doctors—for abortions. And the longstanding problem of prosecuting pregnant people for their behavior while pregnant would only get worse. However, there are less obvious consequences of fetal personhood. One such consequence is the criminalization of fertility treatments, as the Alabama decision portends.
IVF Patients Sue to Make IVF Unavailable?
The Alabama case ended up in front of the state supreme court because of the incident at a fertility clinic that destroyed three couples’ embryos. As we have discussed, the couples then sued the fertility clinic for wrongful death. The couples also included claims for common-law negligence and breach of contract. Regardless of the particular legal theory, the ostensible goal of the couples is to be compensated for their loss. They spent money and physical labor to develop the embryos through the process of IVF. And the mishandling of their embryos means that labor was wasted, and they will have to either repeat those steps or forego their attempts to achieve pregnancy through this method. But in their quest to gain compensation, they are challenging the very existence of the fertility treatment they themselves used.
It is typical in IVF treatment to create more embryos than will ever be used. From a set of fertilized eggs, some are discarded because they did not develop properly; some are implanted in an attempt to achieve pregnancy during an ovulatory cycle; and some are frozen to use for future pregnancies or if the first or subsequent cycles fail. Whether frozen embryos are used depends on a variety of factors, including whether the patient being implanted with them becomes pregnant after one cycle or requires several cycles to achieve pregnancy or never successfully becomes pregnant. It is commonplace for people undergoing IVF treatment to end up with unused embryos that they can choose to save or discard, or even sometimes to donate.
The import of this ruling is that the normal IVF process is exposing cryobanks and reproductive medicine providers to wrongful death liability for every discarded embryo, as well as any embryo that doesn’t survive the thawing process. The plaintiffs in this case may register this ruling as a win because it might result in their obtaining compensation for the lost embryos, yet those same couples would likely not have the option of using IVF in the future because it will be too risky to operate a cryobank in the state of Alabama and handle unimplanted embryos. If every dropped vial is a “killing,” the stakes are just too high.
The opinion’s reasoning threatens the legality of IVF in general (as well as logic and common sense). The Alabama decision concludes that embryos are children for purposes of the wrongful death statute. If that is true, isn’t freezing embryos wrongful? You couldn’t freeze a child, after all, without being guilty of a crime. Or is only thawing an embryo wrongful because an embryo can only be at room temperature for a few hours before it must be implanted? And if an embryo is only “alive” when it is frozen and “killed” when thawed too fast or left for too long, how much does it really resemble a human child?
If you can’t freeze embryos, IVF becomes not only becomes more difficult but also less likely to work (“fresh” embryos are less likely to implant successfully). And if you can freeze them but can’t thaw them, IVF definitely won’t work. And if you can freeze them and thaw them, but must implant every single one regardless of quality, availability of an open womb, and desire for parenthood, then IVF becomes logistically impossible. Doctors would not be able to create multiple embryos at a time, which would make IVF more expensive and laborious and expose patients to unnecessary additional rounds of egg-harvesting, which is both risky and painful. The fertility clinics might also be barred from performing selective reduction—where the doctor terminates some of the embryos if too many have implanted, and it would be unsafe for the person to carry multiple fetuses. Doctors would be forced to implant every available embryo, regardless of the impact on the health of future fetuses or the person gestating them. And perhaps disposing of embryos that are not viable would now be deemed murder—and their 1/10 millimeter “corpses” would need proper Christian burials.
Conclusion
Since the first “test-tube” baby in 1989, in vitro fertilization has become a mainstay of fertility treatment in the United States and elsewhere. It is responsible for four million births per year in this country. It has been a saving grace for couples across the ideological and political spectrum who have struggled with infertility. There are problems with IVF, including its exorbitant cost and its inaccessibility to many people. But as a result of this absurd ruling, it may become even more inaccessible to people in Alabama. Surely IVF providers and clinics across the state are now in closed-door meetings, trying to figure out how they could continue to serve their very vulnerable and desperate fertility patients without ending up in the crosshairs of the Alabama theocracy. The decision could well lead to the end of IVF services in the state. And this is exactly what the anti-abortion movement wants. As for the rest of the country, we are just beginning to see the damage that the quest for “fetal personhood” can do.
