The Alabama high court’s majority ruling did not address whether “extrauterine children” should be treated as human beings, but it did determine that an 1872 law that allows for family to sue over the wrongful death of a child did not specify whether that child was located outside of a uterus.
The lawsuit was brought forward by IVF patients whose frozen embryos were accidentally destroyed in 2020 after a patient at a fertility clinic removed the embryos from a cryogenic storage unit.
The opinion stated that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”
The defendants in the lawsuit, a fertility clinic, warned that legally considering frozen embryos to be children would have a negative impact on fertility treatments in Alabama, making them more expensive and causing the preservation of embryos to be more “onerous.”
The court acknowledged these concerns but dismissed them as issues better suited for consideration by “the Legislature, not this Court.” Alabama Supreme Court Justice Greg Cook argued in his lone dissenting opinion that the court was expanding the law
and encroaching on the state legislature’s duties.
The University of Alabama at Birmingham health system, which includes the largest hospital in the state, announced following the decision it is pausing all IVF treatments out of fear of lawsuits and criminal prosecution.
“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” the health system said.
According to the most recent federal statistics, 238,126 patients underwent IVF treatment nationally in 2021, resulting in the births of 97,128 babies.
