Politics of Personhood: Alabama Supreme Court’s IVF Ruling Unravels Public Services

Following the overturning of Roe v. Wade, abortion rights became federally unprotected, leaving room for many states to place significant restrictions on abortion and reproductive practices. This outcome was predicted following the Supreme Court’s ruling, but further challenges to personhood have cropped up in these same states that are challenging more than just abortion. 

In September of 2023, a psychiatric inpatient at an Alabama IVF Clinic accessed a cryogenic embryo nursery, removed three embryos from storage, burned his hands on the frozen embryo containers, and dropped the embryos, effectively destroying them. 

On February 16 of this year, the suit brought by the incident was brought to the Alabama Supreme Court, which ruled that frozen embryos are unborn children under Alabama’s wrongful death statute. The ruling claimed that “unborn children who are located outside of a biological uterus” when they are destroyed fall under Alabama’s Wrongful Death of a Minor Act [1]. The impact of this ruling is simple but surprising—Alabama now legally considers embryos a child. 

While the ruling may be a small legal change regarding embryos' status, it will (and has) greatly impacted IVF clinics in Alabama.

In-vitro fertilization, or IVF, has been used since 1978 to help prospective parents who are struggling with fertility. However, the ability to freeze and transfer embryos has only been possible since 1983 [3]. This has increased the effectiveness and accessibility of IVF practices, and the embryo freezing capability has not faced notable legal issues in the past, especially with the security of Roe v. Wade. IVF therapy works by removing eggs and sperm from humans, combining them outside the womb, and re-implanting them inside a uterus. This case was not about embryos inside a uterus; it was about frozen, unimplanted embryos sitting in a lab. 

The chief legal reasoning behind the plaintiff’s call for damages against the IVF Clinic was based on Alabama’s 2022 Constitution, which states that the state must protect the rights of an unborn child “in all manners and measures lawful and appropriate [2]”. The court, upholding the plaintiff’s view on the state constitution, held that unborn fetuses are considered minor children under their Wrongful Death of a Minor Act and can be argued as such for cases involving in vitro embryos. 

The Alabama Supreme Court ruling does not outlaw IVF in any sense, but the effects of the ruling are less obvious than what is stated in the majority opinion. When embryos in Alabama are frozen, any damage to the embryos that would render them unusable would essentially be the death of a minor. The liability arising from this fact is enormous—it is not infrequent that embryos are accidentally damaged or discarded, and this is now an immense problem for IVF clinics in Alabama [3]. In a dissenting opinion, Justice Cook noted that “[n]o rational medical provider would continue to provide services for creating and maintaining frozen embryos” knowing that if any embryo were damaged, they would risk significant civil penalties in the Alabama court of law [1, pg 123-124]. Alabama IVF clinics have begun changing or stopping their treatments following the ruling, and many clinics and physicians have started to discuss whether patients should move their embryos out of the state. Three of the seven IVF providers in Alabama have already announced that they are changing their services due to the ruling [4]. 

The court case will likely cause court actions beyond Alabama’s borders. The conservative interpretation of where life begins could find legal ground in other conservative states, giving full legal personhood to fertilized eggs. It is very possible that suits in other states will be brought in the same manner to define personhood. But this agenda extends beyond just IVF—combined with the Dobbs decision, this ruling could be a building block for a national fetal personhood law, followed by the grand finale—a federal abortion ban. 

Sources:

1. LePage v. Center for Reproductive Medicine, So. 2022-0515 (Ala. 2024). 
2. ALA. CONST. art. 1 Sec. 36.06
3. The History of IVF: Origin and Developments of the 20th Century, Pacific Fertility Center of Los Angeles, https://www.pfcla.com/blog/history-of-ivf (last visited Oct 20, 2024).
4. Susan Crockin, JD. Francesca Nandi, JD, Alabama Supreme Court Rules Frozen Embryos Are “Unborn Children” and Admonishes IVF’s “Wild West” Treatment, American Society for Reproductive Medicine https://www.asrm.org/news-and-events/asrm-news/legally-speaking/frozen-embryo-destruction-and--potential-travel-restrictions-for-surrogacy-arrangements2/ (last visited Oct 20, 2024).