Alabama Supreme Court Acknowledges Reality, Which Collides With Standard IVF Practice

Personhood Remains The Essential Question.

Last week Alabama jumped headfirst into controversy and not a little opprobrium when its Supreme Court ruled that frozen embryos stored at fertility clinics are children under state law, and their destruction can be a cause for a wrongful death action.

The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a decision critics said could have sweeping implications for fertility treatment in the state.

The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.”

The irony of the controversy is that it touches upon an area of reproductive medicine that is itself largely without controversy: the use of in vitro fertilization to aid women in pregnancy and childbirth. Yet because the embryos created during IVF procedures are, under Alabama law, now explicitly recognized as children, legally speaking the disposal of the “excess” embryos routinely created to ensure successful impregnation is now the killing of a child. IVF clinics in Alabama have been suspending their services, fearful of the liabilities that potentially attach to standard IVF procedures and protocols.

The University of Alabama at Birmingham health system is pausing in vitro fertilization (IVF) treatment following an Alabama Supreme Court ruling that found frozen embryos are children, the health system said in a statement to CNN.

The decision makes UAB the first known organization in the state to confirm it is pausing the treatment.

Its announcement could be the start of what reproductive rights advocates and medical experts have been warning about for days: that 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.

Perversely, a close read of the ruling itself (LePage v Center for Reproductive Medicine, PC¹) shows that it was an inevitability: Alabama law has already taken the position that unborn children are children from the moment of conception. That IVF clinics freeze and then store indefinitely children as frozen embryos is less of a momentous leap than the media wants to people to believe.

As with so many things in life, the challenge created is not whether IVF itself is right or wrong, but, with the creation of new life by definition at the crux of the treatment, how do clinics and clinicians assist women in pregnancy via IVF while at the same time respecting the lives the procedures create?

Perhaps predictably, the corporate media has had a somewhat knee-jerk reaction of blaming the Alabama Supreme Court ruling on the United States Supreme Court ruling in Dobbs v Jackson Women’s Health Organization², which completely overturned the “right to abortion” decreed by Roe v Wade³ in 1973.

Reproductive rights experts say courts in other states could issue similar rulings or state lawmakers could pass related legislation — moves that could leave clinics nationwide vulnerable to lawsuits over frozen embryos and hinder access to fertility treatment.

On Tuesday, the White House said the fallout from the ruling is “exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”

Unfortunately, the corporate media treatment of the Alabama case has been very much like its prior treatment of the Dobbs ruling in 2022: focusing exclusively on the presumptive rights of women without regard to the indisputable rights of the unborn child (rights that exist if we assume that human life begins at conception). Even Justice Harry Blackmun, when he penned the original Roe opinion, conceded that any establishment of rights accruing to an unborn child would completely demolish all rationales put forward for acknowledging a woman’s right to abortion.

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. [Footnote 51] On the other hand, the appellee conceded on reargument [Footnote 52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The establishment of personhood for a new human being has always been the crucial question in the abortion debate, and remains the central question after the Dobbs ruling.

This question comes back around in LePage, with even greater relevance, as the case itself encompasses a broader conceptualization of reproductive rights than abortion does.

A key factual point of the LePage case must be understood: the case itself centers on the accidental destruction of frozen embryos stored by the Center for Reproductive Medicine as part of its routine procedures for providing fertility treatments to women.

The plaintiffs allege that the Center was obligated to keep the cryogenic nursery secured and monitored at all times. But, in December 2020, a patient at the Hospital managed to wander into the Center's fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient's hand, causing the patient to drop the embryos on the floor, killing them.

Unlike an abortion, where the declared intent of the procedure is to terminate the embryonic life within the womb, no such intent was in evidence here. Indeed, as the embryos were potentially to be implanted in the women plaintiffs to the case, if there was any formed intent by any named actor it was to preserve and sustain said embryonic life.

When the plaintiffs filed a wrongful death claim against the Center for Reproductive Medicine, the legal status of the personhood of the accidentally destroyed embryos was brought front and center into the Alabama courts. Regardless of which way the courts ruled, the ruling necessarily would establish a state-level precedent on the personhood of the unborn.

Regrettably, but again predictably, Democrats and Republicans alike have also managed to completely ignore the personhood question that is the epicenter of LePage.

Alabama Democrats are currently preparing legislation aimed at reversing the Alabama Supreme Court’s ruling.

House Minority Leader Anthony Daniels, a Democrat, introduced legislation to clarify that a “human egg or human embryo that exists in any form outside of the uterus shall not, under any circumstances, be considered an unborn child” under state law.

“This is just the first step in unwinding this predicament our state has placed itself in,” Daniels said.

However, it would be a matter of constitutional interpretation whether Daniels’ proposed legislative remedy would be sufficient. The Alabama State Constitution contains a section on “The Sanctity of Unborn Life”, and, as was noted in LePage, explicitly affirms the rights of the unborn child.

Article I, § 36.06(b), of the Constitution of 2022 "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate."

Perhaps more pertinent to the proposed legislation articulated by the Alabama House Minority Leader, however, is Article 1 §36.06(a), which explicitly commits the Alabama state government to protect the sanctity of unborn life.

This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.

Will that constitutional language be a bar to declaring frozen embryos to not be “unborn children”? Until the law is passed and then litigated, there is no way to fully answer that question.

On the Republican side, US Senator Lindsay Graham (R-South Carolina) publicy stated over the weekend that the Alabama legislature—or perhaps the US Congress—would “correct” the Alabama Supreme Court ruling.

Sen. Lindsey Graham (R-S.C.) said Saturday that he thinks there will be a “correction” of the Alabama Supreme Court ruling that frozen embryos are people, which has caused health centers across the state to pause in vitro fertilization (IVF) treatment.

“We’re for keeping these clinics open. You know, there will be a correction of the Alabama ruling by the state legislature in Alabama, the Governor has come out,” Graham said in an interview with Fox News. “But, we want to keep these clinics open.”

Additionally, several GOP Senate hopefuls have come out in defense of IVF procedures and clinics.

Nevada Senate GOP candidate Sam Brown referred to IVF as "a blessing" for many families, Tim Sheehy, who is running for Senate in Montana, called it “a path for families to grow and thrive,” Pennsylvania Senate candidate Dave McCormick, lauded the treatment as "a ray of hope," and Arizona Senate candidate Kari Lake praised it "extremely important" for helping countless people become parents.

Former Maryland Gov. Larry Hogan, who is hoping to flip outgoing Democratic Sen. Ben Cardin’s seat in his home state, wrote on X on Friday that IVF helped many Americans become parents “and government should never stand in the way of that.”

Former Rep. Mike Rogers, who is running for Senate in Michigan and co-sponsored a series of measures attempting to define human life as beginning at the moment of fertilization, wrote on Friday that he also rejected restricting access to the treatment.

Even likely GOP Presidential nominee (and former President) Donald Trump posted on his Truth Social social media platform a full-throated support for IVF.

“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! That includes supporting the availability of fertility treatments like IVF in every State in America,” Trump wrote on Truth Social. 

“Like the OVERWHELMING MAJORITY of Americans, including the VAST MAJORITY of Republicans, Conservatives, Christians, and Pro-Life Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby,” Trump wrote.

However, none of these statements bother to acknowledge that the LePage ruling does not declare in vitro fertilization to be illegal, nor unconstitutional. Quite the contrary, the declared causes of action brought against the Center For Reproductive Medicine and the Mobile Infirmary Association necessarily presume that the IVF procedure itself is lawful and constitutional.

The plaintiffs brought two lawsuits against the Center and the Association. The first suit was brought jointly by the LePages and the Fondes; the second was brought by the Aysennes. Each set of plaintiffs asserted claims under Alabama's Wrongful Death of a Minor Act, § 6-5-391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes' case) or negligence and wantonness (in the Aysennes' case), for which they sought compensatory damages, including damages for mental anguish and emotional distress. The plaintiffs specified, however, that their common-law claims were pleaded "in the alternative, and only [apply] should the Courts of this State or the United States Supreme Court ultimately rule that [an extrauterine embryo] is not a minor child, but is instead property." In addition to those claims, the Aysennes brought breach-of-contract and bailment claims against the Center.

The very nature of the claims presented by the plaintiffs in this case presumes that in vitro fertilization procedures are themselves lawful and do not, by themselves, give rise to any extraordinary liability or potential criminality.

The plaintiffs alternative common-law claims arise from common-law claims of negligence. A claim of negligence⁴ is a claim that the defendant failed to exercise a requisite level of care in performing some duty.

Negligence is the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances.

As a basic legal proposition, a claim of negligence has five discrete elements:

The following five elements may typically be required to prove negligence:

• The existence of a legal duty that the defendant owed the plaintiff

• Defendant’s breach of that duty

• Harm to the plaintiff

• Defendant’s actions are the proximate cause of harm to the plaintiff

• Defendant’s actions are the cause-in-fact of harm to the plaintiff

Necessary to all of these elements is the presumption that whatever activity which gives rise to the legal duty owed by defendant to plaintiff is itself legal and permissible.

This understanding of negligence is essential to the LePage case, because Alabama’s Wrongful Death of a Minor⁵ statute itself is in large measure grounded in the same concepts of negligence, with specific language attached focusing the wrong done as being against a child rather than inanimate property (emphasis mine).

When the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father, or the mother as specified in Section 6-5-390, or, if the father and mother are both dead or if they decline to commence the action, or fail to do so, within six months from the death of the minor, the personal representative of the minor may commence an action.

Thus a core presumption within LePage is that IVF itself is both legal and proper, and it is only with respect to the handling of the frozen embryos that a claim of wrongful death (or negligence) arises.

Indeed, even the abortion-inspired “sanctity of life” text recently added to Alabama’s constitution does not come into play with respect to IVF per se. It is only in making a determination of what to do with “excess” embryos created during a routine IVF procedure—and the procedures typically produce numerous excess embryos by design.

The way IVF usually works is like this: A doctor retrieves eggs from a person’s ovaries, which are then fertilized by sperm in a lab to create as many embryos as possible. One or more of the embryos with the best chance at survival are then implanted in a human uterus in a process referred to as the transfer. Leftover embryos can be frozen and stored for potential future use or donation, or they may be destroyed, per the Mayo Clinic.

We must take care to emphasize that even after the LePage ruling, IVF itself remains perfectly legal within Alabama. On its face, the Court did not seek to ban IVF as a fertility treatment alternative.

Because there is no direct challenge to the legality or even the propriety of IVF, we do well to be somewhat skeptical to claims that the ruling circumscribes women’s reproductive health choices—indeed the ruling itself would be highly suspect if it sought to do so, for such a ruling would explictly, flagrantly, and unconscionably violate women’s legitimate rights of bodily autonomy—rights for which there is considerable support both in ethics and in law even beyond the question of abortion.

Bodily Autonomy: Our Inalienable Right Of Choice?

Even though Roe itself was less centered on bodily autonomy issues than its prevailing mythos would suggest, its cancellation does present a particular challenge to arguments in favor of bodily autonomy, if only because they are once again thrust into the arena of public debate.

Moreover, bodily autonomy concerns extend far beyond the issue of abortion. Opposition to the many iterations of coercive inoculation mandates either proposed or enacted at various levels of government during the COVID-19 Pandemic in large measure leverage the same arguments used by the pro-choice advocates in the abortion debate; “my body, my choice” has often been repurposed by inoculation mandate opponents (including myself) to capture the moral imperative behind their opposition.

Yet this repurposing of rhetoric also highlights a particular moral challenge: absent superseding arguments such as personhood, we must be prepared to accept, however distasteful, the option of abortion if we are to have an ethically consistent framework of bodily autonomy. Stephanie Brail, in her excellent “Wholistic” Substack, concedes this exact point.

I think abortion is wrong, but I'm not in favor of banning it in part because I favor bodily autonomy and medical freedom (I'm against vaccine mandates).

For these reasons, it behooves us to consider what the law has already said on the subject of bodily autonomy. If abortion is no longer the preeminent defense in favor of bodily autonomy, what other legal arguments and principles might already apply in favor of the position?

Let us be clear: Any person’s basic rights of bodily autonomy are real, and are fundamental and foundational to any concept of personal liberty.

How an individual apprehends his or her own rights of bodily autonomy, including the desired stance of the larger society regarding those rights, is inherently a moral proposition. It is that moral relevance that mandates pressing the case for bodily autonomy wherever it comes under challenge, and also scrutinizing any assertion of competing or superseding principles.

Fortunately, in large measure the courts have already considered the principles of choice underpinning common understandings of bodily autonomy, and, by and large, agreed with those principles. For over a century, the courts have repeatedly affirmed, through the general rights of privacy elucidated in the Bill of Rights as well as the liberty and equal protections clauses of the Fourteenth Amendment, that the general right of bodily autonomy not only exists, but is foundational and fundamental. Within the Constitutional order, we are not free unless we are free to choose what is to be done with regards to our bodies.

Yet if the LePage ruling does not challenge or condemn IVF, and if it therefore does not challenge on its face a woman’s legitimate rights of bodily autonomy, wherefore does the controversy arise? How is the Court’s defense of the frozen embryos an infringement of that bodily autonomy?

In a word: cost. Rather, potential costs as well as potential claims against a typical IVF clinic.

The fear that is motivating many Alabama IVF and fertility clinics to suspend their procedures is that of potentially ruinous liability arising from an improper disposition of the frozen embryos.

According to an analysis by legal writer Mark Joseph Stern in Slate, this ruling means that if someone happens to accidentally damage or destroy an embryo, IVF providers could face a wrongful death suit and millions of dollars in punitive damages, which would be ruinous.

Further perspective on the legal ramifications of the LePage ruling was provided to Glamour Magazine by Sara Ainsworth, JD, senior legal and policy director at the nonprofit organization If/When/How: Lawyering for Reproductive Justice.

The ruling itself is limited to “whether or not the people who created the embryos can sue for alleged wrongful death of frozen pre-embryos (let’s be scientific about it, they’re pre-embryos),” says Ainsworth. By ruling that embryos can be classified as children under the state’s already existing Wrongful Death of a Minor Act, the court has created civil, but not criminal, liability for clinics, who can now be sued by the owners of the embryos. While those accused are not looking at murder charges or criminal endangerment charges or anything like that, civil penalties can still be financially ruinous. In addition, the ruling’s broader implications have patients and doctors rightfully worried and confused.

“[This ruling] is patently absurd and undermines our centuries of understanding of what legal personhood is,” says Ainsworth. “What the risks are to people are really unknown at this time from a legal perspective…. People are going to need legal help to navigate what Alabama has done here.”

However, Ainsworth is not entirely correct with respect to the evolving understandings of legal personhood—and, let us be clear, such understandings are evolving.

What would no doubt discomfit Ainsworth and other legal experts is the possibility that the law has already established precedents which can only reconcile with the presumption that life—and thus personhood—begin at the moment of conception. The acceptance of DNA evidence within criminal court cases—even to the extent of allowing for “John Doe” arrest warrants for cases where a perpetrator’s name is unknown, but his DNA profile is known—has crafted a clear and indisputable legal principle: DNA is Identity, and a unique DNA profile is legally assumed to identify a unique human being.

Personhood: Abortion's Essential Question

While none of these cases address abortion, they do make one thing absolutely certain: human DNA identifies a discrete human being. Thus identified, that human being comes under the jurisdiction of the courts—the human being is subject to arrest, subject to trial, and is availed of all the rights, liberties, and protections afforded him by statutory law and the United States Constitution.

DNA, therefore, identifies a person, and does so from the moment of conception, wherein the distinct DNA that identifies a distinct person is created.

As a matter of basic biology, there is no disputing that a unique DNA profile is created during conception, when sperm and ovum unite. As a matter of well-established case law in multiple courts and jurisdictions, a unique DNA profile by definition identifies a unique human being. In the eyes of the law, where there is a unique DNA profile, there is a unique human being—there is a person. Where there is a person, not only can that person be subject to arrest and arrest warrants, but, being subject to arrest and arrest warrants, that person also is fully possessed of all Constitutional and civil liberties.

It takes no great leap of legal logic to see that, if DNA identifies a person fully equipped with all Constitutional and civil liberties, and that DNA comes into existence at conception, legal personhood necessarily attaches to the unborn child at the moment of conception. To argue otherwise would require that DNA not be sufficient identification in a criminal proceeding, and would require that additional unique identifiers besides DNA be provided before issuing warrants for their arrest. To say that the unique DNA profile of even a “pre-embryo” stored in a cryogenic “infirmary” does not identify a unique person challenges the scientific basis for DNA evidence in every courtroom in the United States.

If a DNA profile identifies a person, every DNA profile identifies a person (even that of a “pre-embryo” newly conceived, either in vitro or in vivo). If a DNA profile is insufficient to identify a “pre-embryo” as a person, then a DNA profile by itself is insufficient to identify a person—a conclusion which decades of court cases flatly rejects.

Thus we see the shape of the actual controversy—and the actual challenges—posed by the LePage ruling. The Alabama Supreme Court has explicitly stated that the frozen embryos created at IVF clinics during an IVF treatment are “unborn children”, and therefore are persons in the eyes of the law—with the full accompaniment of rights that any adult human being might possess. As human beings, an IVF clinic may not simply discard the “extra” embryos created during an IVF treatment. While the embryos themselves are created specifically for implantation in to a woman’s womb, they are, whether implanted or cryogenically stored, human beings with an inalienable right to life.

Legally speaking, the resolution for the IVF clinic is to simply not create “excess” embryos. If there are no excess embryos, if all embryos created are implanted in a woman’s womb, the potential risks for wrongful death cases arising from mishandling of stored embryos disappears, because there would be no stored embryos.

Practically speaking, this could make IVF treatments themselves even more exhorbitantly expensive than they already are, and push them out of the reach of all but the wealthiest of women.

Thus, while the ruling may not on its face challenge a woman’s bodily autonomy, practically speaking there arises a very real challenge to that principle, if the consequence of the ruling increases the cost of a proven fertility treatment beyond the means of many if not most women who might need or want it.

Yet at the same time, the current practices at IVF clinics are creating numerous human lives fated to spend their existence in a cryogenic “nursery”. Current practices create human beings only to discard them if they are not selected for implantation.

The standard rebuttal to the presumption that the frozen embryos are human beings with all the rights thereof is that the embryo is simply a bunch of cells.

“This ruling is stating that a fertilized egg, which is a clump of cells, is now a person. It really puts into question, the practice of IVF,” Barbara Collura, CEO of RESOLVE: The National Infertility Association, told The Associated Press Tuesday. The group called the decision a “terrifying development for the 1-in-6 people impacted by infertility” who need in-vitro fertilization.

There is, however, a singular flaw in the “clump of cells” thesis: a fully grown adult human is also, strictly speaking, a “clump of cells”.

Consider the definition of the word “clump”:

a group of things clustered together

Surely the cells of even the fully grown human adult are still “a group of things clustered together”.

Stating that the embryo is “a clump of cells” is simply rhetorical sleight of hand meant to undermine claims of personhood for the unborn child. Logically, it is a tautology, a statement that is always true—and thus an example of a statement that is simply not relevant.

Yet to dismiss the claims of personhood is not at all the same as disproving them. Thus we arrive at the core of the controversy. It is the core of the controversy over Roe v Wade, over Dobbs, and over LePage: is the unborn child—be that child labeled “zygote”, “embryo”, or “fetus”—a person, with all the rights guaranteed to the individual person by the United States Constitution? Or is the unborn child not a person, and thus with no rights at all?

And there is another question, corollary to this core question: who has the right to determine whether the unborn child is a person or not? Does the US Supreme Court have the power to decide who is and is not “human”? Does the US Congress? Do the legislatures and courts of the several states?

If no human entity—no court or legislature—has the competence to decide who is and is not “human”, on what basis do any of us presume to decide what makes the individual a “person”?

As Justice Harry Blackmun conceded in the original Roe opinion 50 years ago, the answer to this question of personhood for the unborn child is the fulcrum for this entire debate. The challenge of personhood invariably establishes how one apprehends legislation surrounding all aspects of reproductive medicine, including both abortion and in vitro fertilization.

Yet, while there are innumerable evidences and arguments in favor of establishing personhood for the unborn from the moment of conception, they are persuasive only to those willing to be persuaded. In the end, the question of personhood for the unborn child is entirely a moral and not a scientific question. It cannot be “proven” with any finality.

And so here we are, grappling with a moral conundrum, courtesy of the Alabama State Supreme Court.

1. James LePage and Emily LePage, individually and as parents and next friends of two deceased LePage embryos, Embryo A and Embryo B; and William Tripp Fonde and Caroline Fonde,individually and as parents and next friends of two deceased Fonde embryos, Embryo C and Embryo D v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, SC-2022-0515

2. Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization, et al., 597 US 215 (2022)

3. Roe v. Wade, 410 U.S. 113 (1973)

4. Wex Definitions Team. Negligence. July 2023, https://www.law.cornell.edu/wex/negligence.

5. AL Code § 6-5-391 (2022)