In a ruling on February 16th, 2024, the Alabama Supreme Court declared that frozen embryos outside of the womb are classified as children. There are a few steps to in vitro fertilization (IVF); hormones are taken for the egg retrieval process, and then mature eggs are collected from the ovaries and fertilized in a lab with sperm. One or more of the fertilized embryos are then inserted into the uterus. Many complications can arise from inserting multiple fertilized embryos into the uterus, and since an IVF retrieval process will typically produce additional embryos, it is standard procedure to freeze the embryos not used in the current IVF cycle and keep them preserved in the fertility clinic. By freezing the extra embryos, couples can have additional IVF cycles without the strains that come with egg retrieval, which can include surgeries and hormonal treatments.
In the current case, three couples went through a standard IVF treatment and kept their extra fertilized embryos cryo-preserved at the fertility clinic, which resided within a hospital. Unfortunately, those embryos were destroyed when a hospital patient entered the cryo-preservation area, opened a tank where the frozen embryos were stored, and dropped them to the ground.
The couples sued under the Wrongful Death of a Minor Act. For the court to rule on the matter and determine if there is proper standing under the Act, the court first had to look to whether the embryos were considered unborn children. In analyzing the statute, the Alabama Supreme Court determined that fertilized embryos qualify as children, as nothing in the Act specified unborn children must be in utero. So, the Act “applies on its face to all unborn children, without limitation.” The Court concluded the fertilized embryos fall within the definition of children because “all parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” Dobbs v. Jackson Women’s Health Organization is noted as a ruling factor in the case, with the court stressing that unborn fetuses were widely recognized as living persons with rights and interests dating as far back as the 18th century.
The ruling poses serious risks to not only those who rely on IVF treatments, but for general family planning, as the holding implies that life beings at fertilization. Holding embryos as children creates a slippery slope where individuals can be held civilly and possibly criminally liable for destroying embryos.
IVF clinics in Alabama are already closing with concerns the clinics will be penalized, or individual embryologists, for what they deem safe to freeze or in turn discard. With worry over IVF in the state, both the Alabama House and Senate rallied together and voted to approve legal protections for providers of IVF. The bill would extend civil and criminal immunity to providers of IVF services. While this creates legislature specifically for IVF providers, nothing has been discussed in relation to family planning measures. This poses a serious question: how far can this holding go in terms of family planning, birth control, and autonomy of one’s own body?
In relation to IVF, even individuals who choose to discard their frozen embryos could be liable for killing a child, in theory. What if a couple decides they no longer want to continue keeping the embryos viable? What if one parent wants to unfreeze the embryo and the other doesn’t? If the embryos are never destroyed, but additionally are never given the opportunity to be birthed, does this constitute as the embryos essentially dying? These questions just pose the beginning of larger disputes regarding parental rights of fertilized embryos.
Outside of IVF, emergency contraceptives like Plan B contain a hormone that can keep a fertilized egg from implanting in the uterus. With this ruling, emergency contraceptives can be deemed as killing a child, and those that take it may be at risk for civil or criminal penalties. Additionally, after Dobbs, Alabama reinstated a total abortion ban. However, if a mother miscarries, she could be liable for the death of her own child. While it may seem severe, the door is now open for courts to rule in this manner.