Alabama Supreme Court Ruling Could End IVF Treatments in State

This post originally appeared on Alabama Reflector.

Patient advocates fear that a Friday ruling by the Alabama Supreme Court stating that frozen embryos outside the womb are “children” could be the end for in vitro fertilization (IVF) in the state.

In a majority opinion, Justice Jay Mitchell wrote that there was no exception for frozen embryos under an 1872 law allowing civil lawsuits for the wrongful death of children, or under a 2018 state constitutional amendment that required the state to “ensure the protection of the rights of the unborn child.”

“The upshot here is that the phrase ‘minor child’ means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: ‘an unborn or recently born’ individual member of the human species, from fertilization until the age of majority,” Mitchell wrote. “Nothing about the Act narrows that definition to unborn children who are physically ‘in utero.’ Instead, the Act provides a cause of action for the death of any ‘minor child,’ without exception or limitation.”

The decision could leave fertility clinics vulnerable to lawsuits over frozen embryos, and could hamper access to fertility treatments.

Barbara Collura, CEO of RESOLVE: The National Infertility Association, said Monday she’s concerned that because the decision is based on a “wrongful death” lawsuit, that it could prevent people in the state from attempting IVF treatment.

“We’re going to have a situation where people being able to get care for their infertility is going to be so much harder in Alabama, and not because we’re putting more protections in place, because the way the court has decided the status of a fertilized egg,” Collura said.

The lawsuit involved embryos stored at a fertility clinic in Mobile. According to the opinion, in 2020 a patient “managed to wander” into the fertility clinic and remove several frozen embryos from the nursery, according to the lawsuit. The patient dropped the frozen embryos to the floor, resulting in their loss.

Plaintiffs in the case, who had successfully used embryos stored at the facility, sued the clinic under the state’s Wrongful Death of A Child Act. A lower court, siding with the clinic, dismissed the suit, ruling that the embryos did not fit definitions of “person” or “child” and could not lead to a wrongful death claim.