Alabama Supreme Court - Embryo is a child

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In a first-of-its-kind ruling, Alabama’s Supreme Court said frozen embryos are children and those who destroy them can be held liable for wrongful death – a decision that puts back into national focus the question of when life begins and one that reproductive rights advocates say could have a chilling effect on infertility treatments and the hundreds of Alabamians who seek them each year.

And, critics say, the ruling could soon have consequences nationally as other states could attempt to define embryos as people. Already, one religious group is using the Alabama ruling as precedent in a Florida abortion rights case.

The Alabama ruling, which was released Friday, stems from two lawsuits filed by three sets of parents who underwent in vitro fertilization (IVF) procedures to have babies and then opted to have the remaining embryos frozen.

The parents allege in December 2020, a patient at the Mobile hospital where the frozen embryos were being stored walked into the fertility clinic through an “unsecured doorway,” and removed several embryos from the cryogenic nursery, the state’s Supreme Court ruling said. The patient’s hand was “freeze-burned” by the extremely low temperatures the embryos were stored in and the patient dropped them on the floor, killing them, according to the ruling.

The parents sued for wrongful death but a trial court dismissed their claims, finding the “cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child,’” according to the ruling.

But in a stunning reversal last week, the state Supreme Court disagreed, noting “extrauterine children” – or, unborn children “located outside of a biological uterus at the time they are killed” – are children, and they are covered under the state’s Wrongful Death of a Minor law.

Though the court’s decision does not prohibit IVF, it’s the first known case in which a US court says frozen embryos are human beings, and that could have profound impacts on how the fertility industry in Alabama operates, critics warned.

They say it could send liability costs skyrocketing, making fertility treatment prices prohibitive for many families; it could discourage medical providers from performing infertility treatments in fear of being held liable each time an embryo does not turn into a successful pregnancy; and it could mean parents will now be forced to pay for lifelong storage fees of embryos they will never be allowed to discard, even if they don’t want any more children.

“No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim,” Alabama Supreme Court Justice Greg Cook wrote in the sole full dissenting opinion.

“There is no doubt that there are many Alabama citizens praying to be parents who will no longer have that opportunity,” he added.

What the court’s ruling says
The state Supreme Court’s decision centers on whether frozen embryos are covered under the Alabama Wrongful Death of a Minor Act, which allows parents to sue for punitive damages when their child dies.

In its majority opinion, the court ruled they should, noting Alabama residents voted in 2018 to amend the Constitution to include protections for unborn life. Whether that unborn life is physically in or out of a uterus shouldn’t matter, it said.

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred,” Chief Justice Tom Parker wrote in his concurring opinion. “We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.”

The defendants in the case – the fertility clinic, the hospital and its owner – argued creating wrongful-death liability for frozen embryos would substantially increase the costs of the treatment and could make the preservation of the embryos “onerous” for Alabama families. CNN reached out to representatives of the defendants but has not heard back.

And the ruling could mean parents cannot opt to discard embryos, which happens for a number of reasons, including divorce or the death of one of the two, the association said.

That would cause “embryos to remain in cryogenic storage even after the couple who underwent the IVF treatment have died and potentially even after the couple’s children, grandchildren, and even great grandchildren have died,” the state’s medical association wrote in an amicus brief.

“This absurd result would be the outcome if this Court extends the wrongful death liability to the destruction of cryopreserved embryos,” the association added.

Alabama’s Supreme Court ruled those questions belong with lawmakers and that the Wrongful Death of a Minor Act is clear in that it includes “all children, born and unborn, without limitation.”

Dozens of Alabama patients worried
IVF is a method of assisted reproduction that involves removing eggs from the ovaries and fertilizing them with sperm outside the body. The resulting embryos are then typically placed in a person’s uterus in hopes they spur a successful pregnancy.

“The goal is to actually create as many embryos as possible because that gives you the greatest chance at a pregnancy,” said Barbara Collura, president and CEO of the patient advocacy organization RESOLVE: The National Infertility Association.

That often means there are remaining embryos that are frozen and stored in fertility clinics or cryopreservation centers for several hundred dollars annually.

Once families decide they don’t want any more children, they have several options for those embryos, including to discard them or donate them to research or another family, Collura said. Last week’s ruling could take some of those options off the table, she told CNN.

“We have a lot more questions than we do answers,” Collura said. “Will people be able to have rights over their embryos?”

“People who are already in the midst of (infertility treatments) or who’ve already done IVF in this state and have frozen embryos, what’s the status of those embryos? What can they do with them?” she added. “We just don’t know.”

Dr. Mamie McLean, with Alabama Fertility Specialists, which offers reproductive care in the state, told CNN she’s already heard from more than 30 patients since the ruling who are worried they won’t have control over what happens to their frozen embryos.

“We worry that if this ruling and its worst case becomes true, that we will be limited in the ability to keep frozen embryos in the state of Alabama, which will make fertility care riskier and more expensive for patients, and ultimately limit the access to care that women in Alabama have.”

“Patients are worried,” she added. “This is adding anxiety and stress to patients who are already going through a lot to build their families.”

Doctors are worried too, McLean said: “We’re worried that if this ruling stands, that fewer babies will be born in Alabama.”

About 1 in 4 married women in the United States ages 15 to 49 without prior births has difficulty getting pregnant, the US Centers for Disease Control and Prevention said. And roughly 1 in 6 adults globally experience infertility, according to the World Health Organization.

A third fertility clinic in Alabama has halted part of its IVF treatment programs following the state Supreme Court ruling that frozen embryos are children.

The Center for Reproductive Medicine at Mobile Infirmary said it will stop treatments on Saturday “to prepare embryos for transfer,” according to a statement from the clinic.

Mark Nix, the CEO of Infirmary Health, said in the statement that the Alabama Supreme Court decision “has sadly left us with no choice but to pause IVF treatments for patients. We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving.”

Earlier Thursday, Alabama Fertility’s clinic in Birmingham “paused transfers of embryos for at least a day or two,” according to Penny Monella, the chief operating officer at Alabama Fertility Specialists.

The University of Alabama at Birmingham health system on Wednesday became the first organization in the state to confirm that it is pausing IVF treatment out of legal concerns in the wake of the court’s ruling.

Its announcement could be the start of what reproductive rights advocates and medical experts have been warning about for days: The high court’s decision could have devastating consequences for Alabamians seeking infertility treatments each year to build their families – and it could soon have profound impacts far beyond the state’s borders.

Harper, who has been operating his Huntsville clinic for some 20 years, said the ruling provided “motivation to move embryos from in-house to outside, off-site storage facility.” He said he would move more embryos to a facility in Minnesota.

If the embryos are out of state, Harper said, it’s up to the patient to decide what happens to them. “The embryos are ultimately the patient’s … Ultimately, it should be her right to make the disposition, however she chooses,” he said.

The Biden administration is discussing possible legal and policy options to respond to the Alabama Supreme Court’s in vitro fertilization decision and support affected Americans in Alabama, as well as other states where IVF access could be at risk, according to administration officials familiar with the discussions.

The effort involves officials from the White House, the Justice Department and the Department of Health and Human Services, the officials said.

The discussions are in the early stages and no decisions have been made, officials said.

One source familiar with the discussions cautioned that the administration’s power to issue any executive action to protect IVF access is limited and much of the battle over the issue will be fought politically.

President Joe Biden's aides are also brainstorming how he can capitalize on the Alabama decision as he campaigns for re-election, including new ways to speak about reproductive rights that frame the issue as one that broadly affects Americans. To that end, officials said, the Biden team will begin referring to reproductive rights as a “family, not just a woman’s, issue” and make the case that Republicans can’t make these decisions for “families.”

Officials said Biden now plans to address access to IVF, and the fallout from the Alabama decision, during his State of the Union address on March 7, with the possibility of the White House inviting a guest who was affected by the ruling to attend the speech. Already, first lady Jill Biden will host Kate Cox, a 31-year-old Dallas mom who sued to terminate her nonviable pregnancy in Texas, as a guest for the State of the Union.

The scramble to craft a policy, legal and political strategy in the wake of the Alabama decision underscores how decisive the president’s aides believe access to reproductive rights could be to the November election. Already, Biden aides had devised plans to make abortion access central to its campaign, while making the argument that the Republicans are trying to infringe on Americans’ freedoms and laying the blame squarely on former President Donald Trump, the GOP front-runner in the polls.

As administration officials consider possible options, they’re staying in touch with stakeholders and advocates on the issue, including in Alabama. The Biden campaign similarly has been working with the abortion-rights groups Emily's List and Reproductive Freedom for All on the issue, a campaign official said.

One administration official said IVF was included in some of the executive actions already taken by the Biden administration since Roe v. Wade was overturned, such as safeguarding patients’ health information and strengthening protections for people helping patients travel for reproductive care.

The Biden campaign, meanwhile, plans to aggressively highlight personal stories of Americans affected by the Alabama decision and use the campaign’s surrogate network to keep this issue in the spotlight.

There are active conversations about how top officials, specifically Harris, can publicly message on the issue.

Both the White House and the Biden campaign also are closely monitoring abortion ban cases in Florida and Georgia and preparing to react as soon as decisions are made in the coming days, officials said.

As Republicans struggle to coalesce around a message on abortion ahead of the 2024 elections, a recent Alabama Supreme Court decision finding that embryos created through in vitro fertilization are considered children has put them in a new bind.

The issue has created complications for politicians who have pushed strict anti-abortion policies, said that they believe life begins at conception, or believe that an embryo or fetus deserves the full rights of a person. The Alabama Supreme Court ruling showed the far-reaching consequences those sorts of policies could have for families, and the political difficulties Republicans still face in coming up with a way to talk about the issue to voters.

On Wednesday, Republican presidential candidate Nikki Haley told NBC News that she supported the Alabama ruling, stating, “Embryos, to me, are babies.” But just a few hours later, Haley seemed to walk back her comment on CNN, saying, “I didn’t say that I agreed with the Alabama ruling.” She added, however, that she still believes “an embryo is an unborn baby.”

And on Thursday, Haley again tried to clean up her answer, saying that the court decision may have been right but that there needed to be a new law: “I think that the court was doing it based on the law, and I think Alabama needs to go back and look at the law.”

At the Conservative Political Action Conference in Maryland on Thursday, Sen. Tommy Tuberville, R-Ala., replied, “Yeah, I was all for it,” when asked what he thought of the decision finding that embryos are children.

But he also seemed unclear on what the decision was.

South Carolina Sen. Tim Scott evaded a question Thursday about Alabama’s ruling, saying, “Well, I haven’t studied the issue.”

The former presidential hopeful, who has now endorsed former President Donald Trump, instead took a jab at Haley for her muddled answers on the issue.

“I’m gonna let Nikki Haley continue to go back and forth on that,” said Scott, who had vowed to sign “the most conservative pro-life legislation” if elected president.

Mini Timmaraju, the president of Reproductive Freedom for All, said she wasn’t surprised by the inability of Scott and Tuberville to answer seemingly straightforward questions on IVF.

“When you see folks like Tommy Tuberville today or Tim Scott getting uncomfortable answering questions, it’s because they know how incredibly unpopular the position is,” Timmaraju said.

On Thursday, President Joe Biden and Vice President Kamala Harris criticized the Alabama ruling, drawing a line from the U.S. Supreme Court’s decision to overturn federal abortion rights.

“Make no mistake: this is a direct result of Donald Trump ending Roe v. Wade,” Biden posted on X. “The Vice President and I won’t stop until we restore the protections of Roe v. Wade in federal law for all women in every state.”

Republican Gov. Brian Kemp also defended IVF on Thursday, saying, “You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that.” In 2022, the Atlanta Journal-Constitution reported that audio of Kemp appeared to indicate that he was open to a statewide ban on the destruction of embryos. But in a follow-up comment, the paper said, the governor’s office said he would not support such a proposal if it were formally introduced.

And IVF has long received bipartisan support. Former Vice President Mike Pence, an outspoken opponent of abortion, opened up in his book about his and his wife’s struggles with infertility and wrote that his wife, Karen, underwent IVF multiple times.

“I fully support fertility treatments, and I think they deserve the protection of the law,” he said in 2022.

Trump has so far not weighed in on the ruling, and his campaign did not return a request for comment.

Katie Daniel, from the group Susan B. Anthony Pro-Life America — whose mission statement is to end abortion — said Alabama’s high court made the correct decision, but that doesn’t mean all IVF procedures need to end.

“The Alabama Court recognized what is obvious and a scientific fact — life begins at conception. That does not mean fertility treatment is prohibited. Rather it means fertility treatments need not carelessly or intentionally destroy the new life created,” Daniel said.

In Alabama, a Republican state legislator, Sen. Tim Melson, said he planned to introduce legislation to protect IVF and clarify when embryos are viable.

The split in the conservative movement was on display at two different gatherings going on Thursday.

At the National Religious Broadcasters convention in Nashville, Tennessee, there was support for the ruling from some of the participants. Jo Anne Ramsay from Virginia Beach, Virginia, said she believes “it’s a baby from the moment that the sperm is released into a female,” and that “they should stop anything that would destroy the life of a human being.”

Maureen Maldonado from Flower Mound, Texas, said “hallelujah” to the ruling.

“I believe that they are viable human beings and they should be protected just like you and I should be protected. So I am so excited about it,” she said.

But at the Conservative Political Action Conference on Thursday, some Republican women expressed concern about the ruling.

Michele Schwab, from Doylestown, Pa., said she supports IVF due to her own daughter’s struggles with pregnancy.

“My own daughter lost two babies. So it’s ... I’m emotional,” Schwab said.

As for politicians who may attempt to restrict IVF, Schwab says they’ll lose her vote: “I would not support a politician that goes against that.

Former President Donald Trump said he would “strongly support the availability of IVF” and called on lawmakers in Alabama to preserve access to the treatment that has become a new flashpoint in the 2024 presidential election.

Trump, in a post Friday on his Truth Social network, said: “Under my leadership, the Republican Party will always support the creation of strong, thriving, healthy American families. We want to make it easier for mothers and fathers to have babies, not harder!”

Republicans’ Senate campaign committee leaders acknowledged the stakes with an open memo Friday warning that the Alabama case “is fodder for Democrats hoping to manipulate the abortion issue for electoral gain.” The memo included talking points for Republican Senate candidates, with “Express Support for IVF” topping the list of recommendations.

Speaking Friday night in Columbia, South Carolina, Trump acknowledged the tension among Republicans over the issue and said he had received praise for supporting IVF.

“A lot of politicians were very happy because they didn’t know how to respond to the decision that came down,” he said. “Now they all know how to respond.”

Haley steered clear of the IVF conversation Friday. She said Thursday, after the Alabama ruling, that she views human embryos, which are the earliest form of development after fertilization, as “babies.” But she also said she disagrees with the Alabama court and said the state’s legislators should “look at the law.” Alabama Gov. Kay Ivey and Republican legislative leaders had already started that conversation before the GOP’s presidential candidates weighed in.

In his social media post, Trump steered clear of declaring embryos to be distinct humans worthy of legal protection. His statement focused instead on the practical considerations for would-be parents trying to start families. IVF is typically a months-long process for couples or women who have struggled to conceive and maintain a viable pregnancy naturally. The treatments can cost patients tens of thousands of dollars, with no assurances that an implanted embryo will become viable and end with a healthy child.

“I’m pro-family,” Donald Trump Jr. said Friday in Charleston, campaigning on his father’s behalf not long before the elder Trump issued his statement. “Families should do what they want to be able to make families.”

Trump Jr. said he had not discussed the specifics with his father since the Alabama ruling but said he and his father both know families who have used IVF as a path to having children.

What exactly is the Alabama supreme court (Inserting the word "Alabama" next to supreme court sounds like an oxymoron) intending with this legislation?

Close down IVF by opening the legal authority to charge parents and the clinics with murder?

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern.

Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

In the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty. Examples of this dual sovereignty are described in the U.S. Constitution.

Article VI of the U.S. Constitution contains the Supremacy Clause, which reads, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This effectively means that when the laws of the federal government are in conflict with the laws of a state's government, the federal law will supersede the state law.

People in America generally understand when you say "Supreme Court" you mean the United States Supreme Court. If you put "Alabama" in front of "Supreme Court" most understand it means the highest court in the state of Alabama..

In natural fertilization, only around 40% zigotes develop to become fetuses... so doing the same in vitro with similar success rate would lead to liability for 3 wrongful deaths every two pregnancies?
Taking into account that in vitro fertility treatment is often performed when this number is even lower (for such couples, with in vitro fertilization, waiting for a healthy embryo wouldn't last decades) - how many "wrongful deaths" of non-viable embryos would be recognized?

We do need a serious discussion on when human life begins but I don't think these judges studied thoroughly the biology of fertilization.