The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law in a ruling that could affect infertility care.In the decision, judges turned to its state constitution and concluded that an 1872 state law that allows parents to sue over the death of a minor child “applies to all unborn children.”“Unborn children are ‘children’ ... without exception based on developmental stage, physical location, or any other ancillary characteristics,” Associate Justice Jay Mitchell wrote in the ruling.“The Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection."The court said the ruling also applies to “unborn children who are not physically located ‘in utero’ — that is, inside a biological uterus — at the time they are killed.”Infertility experts expressed concerns that the ruling threatens the use of IVF treatments.“By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama. No health care provider will be willing to provide treatments if those treatments may lead to civil or criminal charges,” Dr. Paula Amato, president of the American Society for Reproductive Medicine, told the Associated Press.“This ruling is stating that a fertilized egg, which is a clump of cells, is now a person. It really puts into question the practice of IVF,” Barbara Collura, CEO of RESOLVE: The National Infertility Association, told the AP.The decision is a “terrifying development for the one-in-six people impacted by infertility” who need in-vitro fertilization, she said.Following the ruling, it isn't clear whether future embryos created during fertility treatments can be frozen or if patients could ever donate or destroy unused embryos.Sean Tipton, a spokesman with the American Society for Reproductive Medicine, told the AP that at least one Alabama fertility clinic has been instructed by their affiliated hospital to pause IVF treatment for now.The plaintiffs in the Alabama case had IVF treatments that created several embryos, some of which were implanted and led to healthy births, the AP reported. The couples paid to keep the unused embryos frozen in a storage facility, but a patient managed to wander into the area in 2020 and removed several embryos, dropping them on the floor and “killing them,” the ruling said.The justices ruled that the wrongful death lawsuits brought by the couples could proceed, although the clinic and hospital named as defendants in the case could appeal.Michael Upchurch, a lawyer for the fertility clinic in the lawsuit, the Centre for Reproductive Medicine, told the AP they are “evaluating the consequences of the decision and have no further comment at this time.”Lila Rose, pro-life president and founder of Live Action, welcomed the decision in a statement.“This ruling, which involved a wrongful-death claim brought by parents against a fertility clinic that negligently caused the death of their children, rightly acknowledged the humanity of unborn children created through in vitro fertilization and is an important step towards applying equal protection for all.” Justice Greg Cook, who filed the only full dissent to the ruling, said the 1872 law was being stretched from its original intent to cover frozen embryos.“No court, anywhere in the country, has reached the conclusion the main opinion reaches,” he wrote, adding the ruling “almost certainly ends the creation of frozen embryos through in vitro fertilization in Alabama.”White House press secretary Karine Jean-Pierre told reporters on February 20 the Alabama decision was yet another consequence of the US Supreme Court overturning Roe v. Wade in June 2022.“This president and this vice-president will continue to fight to protect access to reproductive health care and call on Congress to restore the protections of Roe v. Wade in federal law for all women in every state,” Jean-Pierre said.
