Alabama’s Supreme Court has ruled that frozen embryos created through in vitro fertilization are children and entitled to the same legal rights as “unborn children.”

“The court issued this majority decision in a lawsuit brought forth by a group of in vitro fertilization (IVF) patients whose frozen embryos were destroyed in December 2020 when a patient removed the embryos from a cryogenic storage unit and dropped them on the ground,” The Hill reports.

The opinion stems from an incident at The Center for Reproductive Medicine in Mobile where a “wandering patient” entered the area that stored frozen embryos and dropped several containers.

According to the Alabama Political Reporter, three couples whose embryos were destroyed sued the fertility clinic.

A circuit court judge tossed out the lawsuit because Alabama’s “Wrongful Death of a Minor Act” did not cover embryos.

Per the Alabama Political Reporter:

“The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person,’” the trial court wrote in dismissing the cases.

As such, there were no claims remaining – aside from a breach of contract – for the plaintiffs to make. The court couldn’t award damages for wrongful death and Alabama law prohibits the recovery of damages from a third-party who hasn’t suffered physical injury.

However, writing for the court’s majority, Justice Jay Mitchell reversed the lower court, opened up several new and creative avenues for future lawsuits and likely made IVF treatments in Alabama unaffordable. Writing in a concurring opinion, ALSC Chief Justice Tom Parker turned the opinion into a citation of Biblical scripture.

“When the People of Alabama adopted (the ‘sanctity of life’ provision of the state constitution), they did not use the term ‘inviolability,’ with its secular connotations, but rather they chose the term ‘sanctity,’ with all of its connotations,” Parker wrote. “This kind of acceptance is not foreign to our Constitution, which in its preamble ‘invok[es] the favor and guidance of Almighty God,’ … and which declares that ‘all men … are endowed [with life] by their Creator.’ The Alabama Constitution’s recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama.”

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From The Hill:

In its decision, the Alabama Supreme Court did not address the question of whether “extrauterine children” should be treated as human beings, but it did find that state law did not specify what state an unborn child is to be in.

“The relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation,” the court’s decision stated.

The court found that there is no unwritten exception, as the defendants have argued, to the law that applies to “unborn children who are not physically located ‘in utero’ — that is, inside a biological uterus — at the time they are killed.”

The defendants had also argued that considering frozen embryos as children would result in numerous consequences, including making IVF substantially more expensive and preserving embryos more “onerous.”

“While we appreciate the defendants’ concerns, these types of policy focused arguments belong before the Legislature, not this Court,” the ruling stated.

The ruling was issued by Alabama Supreme Court Justice Jay Mitchell, with seven of the other eight justices concurring.

Alabama Supreme Court Justice Greg Cook argued in his dissenting opinion that it’s not within the court’s role to “expand the reach of a statute and ‘breathe life’ into it by updating or amending it.”

Cook argued the existing law, first enacted in 1872, would not have taken frozen embryos into account and would require the state Legislature to pass an explicit amendment to make the argument.

More coverage from NBC 15:

 

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