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The Alabama Supreme Court’s Ruling on Frozen Embryos

Doctors, patients, and politicians seek answers on how the February 16 ruling could have far-ranging impacts on health care.

Joshua Sharfstein

The Alabama Supreme Court issued a ruling on February 16 declaring that embryos created through in vitro fertilization (IVF) should be considered children. Several of the state’s IVF clinics have since paused services, and lawmakers, doctors, and patients are raising concerns about the far-ranging impacts of the ruling on health care, including reproductive technology.

In a bonus episode of the Public Health On Call podcast, Joanne Rosen, JD, MA, a practice professor in Health Policy and Management and an expert in reproductive law, explains why this decision is so extraordinary. She discusses the immediate response to the ruling, its significance in the post-Dobbs era, and what could happen next.

What is this Alabama court case about?

The plaintiffs are three couples who all underwent IVF treatment at a fertility clinic in Alabama. Through the IVF treatment they received, they all became pregnant and gave birth to healthy babies.

As a result of the IVF treatments, they also produced a number of additional embryos—this is standard procedure in an IVF cycle. Those additional embryos that were not used were frozen and preserved by the fertility clinic. The presumption is that the couples could come back at some later time and have another IVF cycle using these embryos without having to again go through the hormonal treatments and surgeries.

What happened next is what gave rise to this case. The plaintiff couples’ frozen embryos had been cryo-preserved at the fertility clinic, which is located within a hospital. In December 2020, a patient of that hospital entered the fertility clinic's cryo-preservation unit and opened one of the tanks in which frozen embryos are stored. These embryos are stored at sub-freezing temperatures, so when the patient put his hand in and grabbed some of the embryos, he burned himself and dropped the embryos, which hit the ground and were destroyed.

The plaintiff couples brought lawsuits against the fertility clinic and the hospital. One of the lawsuits is for negligence and wantonness, but that wasn’t part of this case. The other lawsuit—the one that’s the subject of this case—was against the hospital and the clinic for the Wrongful Death of a Minor Act, which is an Alabama statute. At the trial court, this case was dismissed; the trial judge stated that embryos that exist in vitro are not people or children for the purposes of the Wrongful Death of a Minor Act, and therefore there was no claim that the couples could bring under that act.

The couples appealed that decision to the Supreme Court of Alabama, the highest court in the state. The Supreme Court disagreed and, in a nutshell, said that the Wrongful Death of a Minor Act does apply. This is a brief quote: “to all unborn children without limitation. And that includes unborn children who are not located in utero at the time they are killed.” So in fact, the Alabama Supreme Court determined that these in vitro embryos are declared personhood, so they are children or people, and the couples can therefore proceed with their lawsuit. They are seeking punitive damages for what they say is the wrongful death of their children.

Can you tell us more about the Wrongful Death of a Minor Act and how it’s being applied here?

The Wrongful Death of a Minor Act dates back to 1872. At the time it was introduced, IVF did not exist and they had a very different understanding of the developing fetus. There is prior Alabama Supreme Court case law making clear that a fetus developing in utero is considered a child for the purposes of Wrongful Death of a Minor Act, so a parent could bring a claim under that act if a fetus developing in utero dies due to an incident. This is the first time ever that the definition of a minor or a child under that statute has been applied to an embryo that exists in a lab.

What have been some of the immediate consequences of this decision?

Within the first week after the ruling, two of the eight fertility clinics in Alabama paused their IVF treatments. One of them is a very large clinic at the University of Alabama at Birmingham Health System. The clinics say that they did so out of real concern of the civil—and potential criminal—liability that their physicians and patients might face.

This pause in IVF treatments also means patients who were scheduled to undergo the last part of their IVF treatment—the transfer of embryos into the uterus—have had those procedures canceled for the time being.

And these procedures have been canceled because there’s concern that some embryos may be destroyed in the process of actually pursuing IVF?

That’s exactly right. When frozen embryos are thawed and prepared for transfer, there is a very small possibility that they may be damaged or destroyed and therefore unable to be successfully transferred. Even fresh embryos may be damaged and not able to be transferred. So there was real concern about the legal consequences given that these embryos, these in vitro embryos, have been declared persons under the law in Alabama.

What are the other other potential consequences of this decision for people in Alabama?

By at least some count, there are over a million and a half embryos currently frozen across the U.S. This isn't all in Alabama, but it raises a huge question about what the obligations are for these frozen embryos. Does this mean that they cannot be destroyed and have to be preserved into perpetuity?

About half of all IVF cycles that take place involve pre-implantation genetic testing of the embryos. Many couples that seek IVF do so because one of the members is a carrier of a known genetic mutation associated with a serious disease or condition. Those couples seek IVF so that they can have embryos genetically tested prior to implantation, and if this genetic mutation is discovered in an embryo, the embryo is usually discarded. Does that mean that pre-implantation genetic testing should no longer take place because you can’t discard the embryos? Those are just two of the questions that arise involving what to do with these embryos, if they are human beings and can give rise to liability.

From a legal perspective, how does this case connect with local- and state-level abortion cases you’re monitoring?

At the time that Dobbs was decided—and even slightly before Dobbs was decided, when it became clear that the Supreme Court was likely to reverse Roe v. Wade—one of the concerns that was being discussed and written about by bioethicists, legal scholars, and reproductive technology specialists was: If the Supreme Court reverses Roe and allows states to regulate life from the moment of conception, this could indeed have implications for IVF, because IVF creates embryos. In fact, in Dobbs, the Supreme Court actually said that states have a legitimate interest in the preservation and protection of prenatal life at all stages of development. So there was speculation about whether there would be litigation around IVF: Could there be attempts to ban IVF because of concerns for how embryos are treated? Could there be more aggressive attempts to regulate IVF?

Alabama—where this case occurred— introduced its abortion ban in 2019, before Dobbs, and it wasn't coming into force because it was unconstitutional at the time. Now it is in force. But interestingly, Alabama’s abortion ban defines abortion as a procedure that causes the death of an unborn child in utero, at any stage of viability; it is a full ban on abortion at all stages of viability, but it specifically says “in utero.” The Alabama senator said that they’d use the words “in utero” deliberately, to make clear that it was not their intention to interfere with IVF.

That doesn't mean Alabama won't act differently after this decision, but it reflects an understanding that IVF matters deeply to many people. And it's a procedure that's used to create life, to create pregnancy—so, it is a pro-life medical technology. The political headwinds around IVF are complicated.

The anti-abortion movement may find that it collides with itself in a way: Abortion terminates pregnancy and IVF exists to create pregnancy.

How do you see this playing out? Could this kind of decision get appealed to the federal courts?

At least to my mind, there isn’t a clear path to take this case to the U.S. Supreme Court, since it involves an Alabama state statute. It involves an interpretation of the Alabama State Constitution. The ball is more likely to land squarely in the court of the Alabama legislature. There were nine justices that heard this appeal in Alabama. Two of them—one in dissent and one who agreed but wrote separately—have said that the proper body to determine how to regulate IVF and what to do with embryos is not the court, it's the legislature.

This issue is likely to land back in the Alabama legislature, which will have to decide what to do: Whether they want to carve out an exception for wrongful death statutes that would not introduce all this complication for in vitro embryos, or whether they want to take a broader look at IVF with the input of bioethicists, reproductive endocrinologists, and legal scholars.

Whether or not they bring in those experts, we can probably expect parents of children conceived with IVF and parents who will need IVF to conceive children to be quite vocal on this issue, correct?

Yes, and they should be. The Dobbs court did say that issues of abortion regulation should be returned to the people through their elected lawmakers. While this isn’t an abortion case, a debate around something in which so many people are deeply invested should involve voices across the spectrum.

Is there anything else that makes this decision so extraordinary?

It is clearly extraordinary in its determination that in vitro, 8-cell, microscopic embryos are considered people. But beyond that, the concurring decision of the Chief Justice and of the main justice are really redolent of a theological kind of discussion. As I was reading these opinions, what really struck me is that the rhetoric sounds more like Scripture than it does the language of the law. Here’s an excerpt:

“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. It is as if the People of Alabama took what was spoken of the prophet Jeremiah, and applied it to every unborn person in the state.”

And the chief justice continues, referring to the embryos:

“Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God, who made them in His image.”

It is a remarkable decision, both in outcome and in the analysis that took us to that outcome.

Joshua Sharfstein, MD, is the vice dean for Public Health Practice and Community Engagement and a professor in Health Policy and Management at the Johns Hopkins Bloomberg School of Public Health. He is also the director of the Bloomberg American Health Initiative and a host of the Public Health On Call podcast.