Alabama Court Rules Frozen Embryos Made by IVF Are “Children”

An embryologist prepares some eggs for thawing on Nov. 11, 2014, in Rockville, M.D. The Washington Post via Getty Images

In a ruling that reads more like a theocrat's sermon, the Alabama Supreme Court on Friday decided that frozen embryos - those created through in vitro fertilization - count as children" under the state's law.

The court's decision specifically permits three couples whose frozen embryos were accidentally destroyed in a Mobile, Alabama, reproductive clinic to sue the facility for wrongful death. The potential consequences in the state and beyond are wide-reaching, confirming concerns of reproductive rights activists that, with Roe v. Wade dismantled, the far-right judiciary would strike blows against all aspects of reproductive health care.

This Court has long held that unborn children are children' for purposes of Alabama's Wrongful Death of a Minor Act," wrote Alabama Supreme Court Justice Jay Mitchell in his opinion, concluding that the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location."

The couples' embryos were destroyed when another patient in the hospital tampered with an IVF freezer and dropped a number of trays. In a 7-2 decision, the court ruled that the couples can now sue the hospital for negligence under a wrongful death statute first passed in 1872, when the wrongful death of a minor" had certainly not encompassed frozen, single-celled eggs. The ruling reverses an earlier judge's decision to throw the case out.

The Alabama ruling threatens the entire IVF industry in the state. It works in one of numerous ways pernicious anti-abortion and anti-trans laws around the country do: taking aim at health care treatments by rendering hospitals' and doctors' liability insurance unaffordable. In this case, health care providers and clinics, fearing the legal risks of storing frozen embryos endowed with legal personhood, may well end such services or face prohibitive costs.

Assisted reproduction is already unaffordable for most, and rulings like Alabama's only risk further entrenching disparities in reproductive care access.

Since the Supreme Court overturned Roe v. Wade in 2022, Alabama has been a total abortion ban state, with no exceptions for rape or incest. Alabama is one of four states to explicitly declare that their constitution does not secure or protect the right to abortion or allow use of public funds for abortion.

Other states show that it did not need to be this way. After the Dobbs decision, voters in six states - California, Kansas, Kentucky, Michigan, Vermont, and Ohio - voted in favor of abortion protections in constitutional amendment ballot measures.

Now, Alabama's darker path is playing the awkward role of using anti-abortion zealotry - the defense of the unborn - in a way that will likely serve as an obstacle for those who are ready and willing to become parents.

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The End of Roe Chapter and Verse

In Friday's ruling, Alabama Supreme Court Chief Justice Tom Parker invoked a 2018 Sanctity of Life" amendment to the state's constitution, ratified by voters, that requires courts to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life." Parker raised the amendment with religious fervor, citing biblical verse. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: Before I formed you in the womb I knew you, Before you were born I sanctified you.' Jeremiah 1:5," the judge wrote.

In one of numerous citations from the book of Genesis included in his opinion, Parker noted, Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man."

Fearing the court would rule against the clinic, Alabama's medical establishment sought to avert the ruling. The potential detrimental impact on IVF treatment in Alabama cannot be overstated," the Medical Association of the State of Alabama wrote in a brief in support of the clinic. The increased exposure to wrongful death liability as advocated by the Appellants would - at best - substantially increase the costs associated with IVF."

More ominously," the association said, the increased risk of legal exposure might result in Alabama's fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine."

Physicians and advocates have previously noted the irony in the fact so-called pro-life efforts to imbue frozen embryos with legal personhood could lead to less reproduction. Restrictive laws on assisted reproduction passed two decades ago in Italy, for example, led to a decrease in success rates in IVF clinics and an increase in high-risk pregnancies.

There's no real irony, however, in Christo-nationalist policies that lead to a reduction in health care options, even for people who want to parent. Pro-natalist agendas have always relied on limiting reproductive justice, in terms of the choice to end a pregnancy, and the choice to parent with safety and support. Italy's current far-right government, for example, has combined restrictions on assisted reproduction with laws against same-sex parenting. A ruling like Alabama's is just the latest to bring together extremist Christianity and neoliberal scarcity in privatized health care. As ever, the least resourced will suffer the most, whatever their reproductive desires.

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