In matters about the tragic death of children, the Alabama Supreme Court has determined that frozen embryos are considered children under state law. In vitro fertilization (IVF) providers are worried about this since they usually generate several embryos to increase the likelihood of a healthy pregnancy. Three facilities, including Alabama Fertility and the University of Alabama at Birmingham Health System, have announced that they would temporarily suspend in vitro fertilization (IVF) procedures due to concerns about possible legal and criminal responsibility due to the decision.
The court upheld a long-standing rule that states “unborn children” are considered “children” under the relevant 1872 wrongful death statute. The state’s constitution was amended in 2018 to affirm the public policy of Alabama to recognize and support the sanctity of unborn life and the rights of unborn children.
For frozen embryos stored outside of a mother’s uterus, the court likewise ruled that no “unwritten exception” applied.
In his explicitly religious concurring opinion, Chief Justice Tom Parker brought the state constitution’s theologically based view to light, saying the wrath of a holy God may be the consequence of a human life being wrongfully destroyed.
The decision did not decide whether or not in vitro fertilization (IVF) could continue in the state, and it was up to the legislature to determine whether or not the destruction of a frozen embryo could be considered criminal murder.
The highest court in each state has the last say over their constitutions, and this one in Alabama is no exception. So far, the defendants have failed to make any arguments that would need a petition to the United States Supreme Court arguing that the ruling infringed upon rights provided by the U.S. Constitution.
While the decisions in those instances may help IVF providers better understand their legal obligations in the event of an unintentional embryo loss, they will not likely address the broader issue of how to implement IVF in light of the recent ruling.
