life after roe

Alabama Ruled Frozen Embryos Are Children — Now What?

Embryology Process
Photo: Tina Stallard/Getty Images

Frozen embryos are children under Alabama law, the state’s Supreme Court ruled Friday in a decision that could have a huge impact on fertility treatments in the state. Burdick-Aysenne v. Center for Reproductive Medicine is a pair of consolidated wrongful-death cases brought by three couples whose frozen embryos were destroyed in an accident at a fertility clinic. The Republican-controlled court based its ruling in the case partially on the Alabama Constitution’s anti-abortion language, which was amended in 2018 to say that it’s the “policy of this state to ensure the protection of the rights of the unborn child.” The justices ruled that under the state’s 1872 Wrongful Death of a Minor Act, “unborn children” are children “without exception based on developmental stage, physical location, or any other ancillary characteristics.” I spoke with Susan Crockin, an adjunct professor at Georgetown University Law Center who specializes in assisted-reproductive-technology law, to find out what the ruling means for Alabamans seeking fertility treatments and their providers, as well as what the decision means for reproductive freedom more broadly.

Can you start by telling us the facts of this case? 

The case involved embryos that had been in IVF tanks in Alabama and were destroyed. The embryos belonged to three sets of patients, each of whom had had one or more children already through IVF. The destruction happened when a patient from another part of the hospital was able to wander into the IVF lab, open the tank, pull out a number of embryos, and then drop them on the floor.

The three families whose embryos were destroyed brought a lawsuit and tried to bring a claim under Alabama’s Wrongful Death Act. That’s a civil law, and it would have allowed them to get not only what are called compensatory damages, which means damages for their actual loss, but what we call punitive damages — something very bad happened and the person who is responsible for it should be punished — which have no limit. However, the Wrongful Death of a Minor Act only applies to an unborn child. The trial court asked and answered the question as to whether or not frozen embryos in a tank outside the body should be considered unborn children, and they answered no. They said that the patients could bring actions for breach of contract and for what’s called bailment, but that they could not bring a wrongful death action, because an embryo is not an unborn child.

The plaintiffs appealed, and what the Alabama Supreme Court did is decide that the Wrongful Death Act was actually what they called “unambiguous” — that it should not discriminate between an unborn child who was in the uterus or not and applied to frozen embryos. Now, the Wrongful Death Act was written in 1872. It’s quite a stretch to say that it unambiguously covers frozen embryos when they did not exist a hundred years ago. The court went on to say that even if the law was not unambiguous, the Alabama Constitution, which protects life from fertilization, would require them to come to this decision.

There’s a very lengthy dissent in which the dissenting justice essentially says, “You’ve got this wrong. First of all, it is ambiguous. Second of all, we have other laws in the state, a criminal law called the Brody Act passed in 2006 and a Human Life Protection Act passed in 2019, and both define an unborn child as being in utero.” Interestingly, there were what we call legislative history recordings of what the legislators thought when they passed the law in 2019. When asked, “Are you sure this doesn’t affect IVF?,” they said words to the effect that, “No, it only affects unborn children in utero.” So this court decided to ignore all of that.

In practical terms, what are the immediate effects of the ruling?

Alabama patients may be thinking they should send their embryos to another state, while patients who want to do something like gestational surrogacy may not want to do it there. The risk of practicing IVF in Alabama has also just gone sky high. If you do something wrong in the process of trying to perform IVF for your patients, you may be subject to a wrongful-death lawsuit and punitive damages. The people of Alabama are going to lose a lot of IVF practitioners. The way in which IVF is practiced is going to be impacted for those who stay, because of the fear of doing something wrong or an accident happening with an embryo.

The judges got it wrong on the law, but they also got it wrong on the science. They went out on a limb telling Alabama IVF doctors how they could practice more safely and didn’t get it right. They claimed that multiple embryos are transferred all the time. That shouldn’t happen; single embryo transfer is the standard. They argue that countries like Australia and New Zealand only fertilize one egg at a time. That’s also not correct. They fertilize multiple embryos and freeze them. So the practice of IVF in Alabama is going to be hugely impacted and patients in Alabama are going to see a lot of restrictions. What’s really sad about this is that the plaintiffs, these three families, are on record as saying that they would not want to hurt other IVF patients. They believe they benefited from IVF and it was a wonderful way to build their family. But that’s where we are.

What do you think this ruling could mean in the long term, and in other states? 

States that are strongly anti-abortion — and perhaps have no hesitation in extending those principles into IVF — see a blueprint for how those practices should be curtailed. If one court has done it, my worry is others will. You’re going to see doctors being very fearful of how the standard practice of IVF is going to be impacted. The way IVF is practiced now is: You do a cycle. You hope that you get multiple eggs. Then embryos that are created are frozen and transferred, one at a time. This court is suggesting that practice should change to only fertilize one egg at a time, which would be incredibly cumbersome, difficult, and expensive. The other thing that worries me is preimplantation genetic testing (PGT). That’s a way to test an embryo to see whether it has a genetic anomaly before proceeding to implantation. If embryos are unborn children, doctors could be afraid of what happens if an embryo doesn’t survive genetic testing. It’s rare, it’s unusual, but it does happen.

There’s also a mention in the case about how doctors shouldn’t worry about treating an ectopic pregnancy. The court essentially says, “Well, that’s a pregnancy that would’ve ended anyway, and the person who asked for the procedure won’t turn around and sue.” But someone could. The court just gets it wrong. We’re going to see everybody looking over their shoulders.

What does this case suggest about fetal personhood? 

It takes the fetal-personhood argument and puts it in the accelerator. It says, “Forget fetuses in the utero. We’re going all the way back to day one, after the sperm has entered the egg. And we want to protect every single fertilized egg, every single embryo, wherever we may find it, at any stage of development.” The court also has a heavy emphasis on religion. When these judges talk about science and medical care, it’s usually secondary to religious belief. They say the Alabama Constitution talks about how “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God who views the destruction of His image as an affront to Himself.” They go on to say that human life, even as an embryo, is deserving of full protection. It’s extremely troubling to see the court injecting religion, misstating the science, and then coming up with a result-oriented legal conclusion.

It seems like there’s no way to amend this in the short term. 

I don’t see a solution in Alabama. Every state will be able to make whatever rules they want. But for those who believe IVF is a family-building option that has given so many people the opportunity and joys of parenthood, this is a wake-up call. You can’t bring legal challenges in today’s environment without worrying about these consequences and how politically driven some of our law is right now.

This interview has been edited and condensed for length and clarity.

Alabama Ruled Frozen Embryos Are Children — Now What?