By Kayla L. Stavinoha, Associate Attorney
Alabama’s Personhood Ruling and What it Means
1 in 6 individuals worldwide experience infertility. 33% of Americans have turned to fertility treatments or know someone who has in order to build their family. In vitro fertilization, or IVF, is the process of creating an embryo outside of the womb using an egg and sperm. Depending on the couple, maybe IVF is using the genetic material of both of the intended parents. Maybe one parent cannot contribute gametes due to a medical diagnosis, genetic condition, or even just the fact that the intended parents are the same sex and an egg or a sperm donor is needed.
For the many Americans who have used IVF in order to build their families, Alabama’s Supreme Court decision on February 16, 2024, has been the source of fear and confusion. On the heels of the overturning of Roe v. Wade, the Alabama Supreme Court and legislatures across the country are using embryo personhood arguments to bolster and strengthen anti-abortion policies without regard for the impact it will have and is having on IVF. Embryo personhood is the idea that once an embryo (a fertilized egg) exists, it is a human life. However, embryo personhood laws often don’t differentiate between a fertilized egg in utero (the life begins at conception argument) vs extra-uterine (IVF).
Alabama Supreme Court Ruling: LePage v. Center for Reproductive Medicine, P.C.
Three couples participated in IVF treatments. They each had multiple embryos created from their genetic material in hopes of using those embryos to create a child. All three couples were successful and had healthy babies from their embryo transfers, and they also had embryos left over that were not used. They each made the decision to preserve their remaining embryos (keep them and determine what to do with them later). The clinic preserving those embryos used a nearby hospital’s cryopreservation equipment to keep the embryos frozen for later use.
A patient in the hospital managed to unlawfully access the preservation room, removed a tray with 5 embryos, received freezer burn and dropped the tray rendering the embryos unusable.
The couples filed a lawsuit for damages under Alabama’s Wrongful Death of a Minor Act.
Under Alabama law, the parents of a deceased child may recover punitive damages for their child’s death. The Plaintiffs in this case argued that the embryos that were destroyed were their children and therefore they were entitled to damages under the Act. The fertility clinic argued that the embryos were not children and should not fall under that statute.
The Alabama Supreme Court held that embryos – or as the Court described them, extra-uterine children – are human beings and it is not the job of the Court to create exclusions from existing laws. This allowed all three couples to recover damages – including putative damages – from the fertility clinic for the wrongful death of the embryos that were destroyed.
Alabama Fertility Clinics’ Response
The response from infertility clinics has been expected, but disheartening. Multiple fertility clinics in Alabama ceased all operations. Multiple transport companies are now refusing to transport embryos into or out of the state for fear of liability. Couples who have spent thousands of dollars and years of their life waiting to get to the point of an embryo transfer were told they would have to wait.
Personhood Laws
In the wake of Alabama’s decision and the overturning of Roe v. Wade, more than a dozen states have proposed embryo personhood laws in their legislatures. These laws would have the same impact on fertility clinics as the Alabama Supreme Court decision. Leaving doctors and patients with no ability to pursue the families they so desperately want.
Recent polling suggests that 85% of Americans are supportive of IVF. As conservative states and legislatures attempt to further restrict access to abortion through laws finding that an embryo is a person, they are also limiting the ability of families seeking to love and care for babies that were born through IVF.