Last Friday, the Alabama Supreme Court ruled 8-1 in Burdick-Aysenne vs. Center for Reproductive Medicine that embryos located outside of a biological uterus qualify as children under the state’s Wrongful Death of a Minor Act. The ruling reverses a trial court’s previous dismissal of wrongful death cases brought by 3 couples whose frozen embryos produced through in vitro fertilization (IVF) at a fertility clinic were accidentally destroyed in 2020. (Frozen embryos were previously considered property under state law.)
In its ruling, the Alabama Supreme Court said that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” and that it does not include an exception for “extrauterine children.” The Supreme Court’s one dissenter, Justice Greg Cook, argued that the Wrongful Death of a Minor Act, written in 1872, “did not recognize that an unborn infant (much less a frozen embryo) was a ‘minor child’ who could be killed.”
For context: The ruling was expected to have a broader impact on IVF availability in the state given it could increase liability for clinics – the failure or selective destruction of embryos are commonly expected outcomes of IVF. As of this writing, 3 Alabama fertility clinics have suspended IVF treatments in response to the ruling. The Alabama Attorney General said on Friday that he “has no intention” of prosecuting IVF families or providers.
Debate over the Alabama court’s ruling and its implications on IVF treatments is layered in nuance. Below are notable viewpoints to help you better understand the topic and form a viewpoint of your own.
Share your viewpoint: We’d love to hear where you stand or anything you think we missed! Reply with your viewpoint and we may feature it in a future publication.
Notable viewpoints
IN SUPPORT OF THE RULING
The Alabama Supreme Court made the right ruling in-line with existing law.
- The Alabama Supreme Court appropriately recognizes the Wrongful Death of a Minor Act passed in 1872 as applying to all unborn children, regardless of their location in utero or in vitro given, primarily: 1) the Wrongful Death of a Minor Act does not specify or limit the definition of “minor child;” 2) recent Alabama Supreme Court Precedent such as Mack v. Carmack (2011) and Stinnett v. Kennedy (2016) permits the unborn (including pre-viability) as subjects in civil wrongful death suits; and 3) Alabama’s 2018 constitutional amendment makes it state policy to protect the unborn in “all manners and measures lawful and appropriate.” (Summarized from the ruling.)
- Contrary to an Alabama Medical Association argument, interpreting the definition of “unborn child” to include in vitro embryos under civil law is reasonable even though criminal law limits the definition of “unborn child” to those “in utero at any stage of development;” criminal violations, by their nature, are more severe than civil violations and may reasonably have a more restrictive definition of personhood. (Summarized from the ruling.)
Fertilization is the beginning of life and should be protected even in vitro.
- "All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life began at fertilization and ends at death.” (From the ruling.)
- Scientific and medical experts agree that fertilization is the beginning of life, according to various collections of definitions and references.
- Fertilization is the beginning of life and the cost of life from IVF is high, with potentially 1M+ embryos created through IVF discarded since the first successful IVF birth in 1978.
The ruling preserves the sanctity of unborn life.
- The ruling is in line with Alabama’s 2018 constitutional amendment supporting the sanctity of life, which “recognizes…that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.” (Chief Justice Tom Parker, in his concurring opinion.)
- The ruling is important because “[e]ach person, from the tiniest embryo to an elder nearing the end of his life, has incalculable value that deserves and is guaranteed legal protection” (Lila Rose, President of Live Action.)
The court is not imposing religion on the state of Alabama.
- When citing the “image of God,” the Alabama Supreme Court and Chief Justice Parker are explaining the religious bases on which Alabama voters adopted the 2018 constitutional amendment to protect life, not imposing their own views.
IVF is against God’s will and should not be practiced.
- Children, according to Catholicism, should be conceived through love and the “marital act,” not created in a lab.
AGAINST THE RULING
The court unreasonably stretched interpretation of existing law.
- The language of Alabama’s Wrongful Death of a Minor Act passed in 1872, on which this ruling largely depends, could not have considered or intended for the inclusion of frozen embryos within its definition of “minor child;” the Supreme Court and “[Alabama’s 2018 constitutional amendment] cannot retroactively change the words passed in 1872.” (Justice Greg Cook in his dissenting opinion.)
- Existing criminal law in Alabama defines a protected human being as “including an unborn child in utero at any stage of development, regardless of viability.” Since the Supreme Court ruling cites this criminal law and Supreme Court precedent to justify the protection of unborn children in this civil case, it should use the same definition of “unborn child” as in criminal cases (limited to an unborn child in utero); the Court’s decision to favor an expanded definition of “unborn child” in this civil case is unreasonable and unclear.
Life does not begin at fertilization and embryos are not viable outside the uterus.
- A fertilized egg becomes a zygote, and “is nearly identical to the egg cell. From a biological perspective, no new life has been created.” It cannot “progress further in embryonic and eventually fetal development” until after implantation in the uterus.
- Fertilization is a “chaotic and multistep process” and “conception” is described varyingly by medical experts as the period between fertilization and implantation into the uterus or the implantation process.
- There is “vigorous debate” within theology and science about when life begins, particularly whether it is at fertilization or after implantation in the uterus.
The ruling will unfairly threaten IVF availability in Alabama and potentially other states.
- The ruling puts undue burden and risk of facing civil charges on IVF providers given failed or intentionally destroyed embryos are an expected part of IVF cycles; for example, not all frozen embryos survive the freezing and thawing process.
- The ruling will substantially increase the cost of IVF to patients in order to offset the potential liability and longer-term storage costs required of IVF providers.
- Other states may take inspiration from the ruling to enact similar legislation or affect broader abortion rights.
Limited access to IVF would be devastating to families with fertility challenges.
- Thousands of families in the US face fertility issues and depend on IVF to bring children into the world; close to 2.3% of all infants born in the US every year are born using IVF.
The court is imposing religion on the state of Alabama.
- The Court and concurring Chief Justice Tom Parker citing “God’s image” in the ruling equates to a form of theocracy despite the US Constitution barring lawmakers from making laws “respecting the establishment of religion.”
SOMEWHAT NEUTRAL ON THE RULING
The court ruling may be limited in application.
- Trial courts may consider whether existing contractual agreements between individuals and their fertility clinics (e.g., agreements that some embryos will be destroyed) limit claims to wrongful death (Summarized from the ruling.)
- The Wrongful Death of a Minor Act only permits civil lawsuits in limited circumstances.
From the source
Read more from select primary sources and aggregated data:
- Full text of the Alabama Supreme Court ruling: Burdick-Aysenne vs. Center for Reproductive Medicine
- Full text of the Alabama Medical Association’s amicus brief
- Full text of the Alabama Wrongful Death of a Minor Act (1872)
- Full text of Alabama’s criminal homicide law: Alabama Code Title 13A. Criminal Code § 13A-6-1
- Full text of Alabama 2018 constitutional amendment: Alabama Constitution of 1901, Art. I, § 36.06
Be heard
We want to hear from you! Share your perspective on the Alabama Supreme Court’s IVF ruling and we might feature it in our socials or future newsletters. Email or DM us in the format of your choosing (video, audio, or text). Below are potential discussion topics to consider.
- Do you support or oppose the Alabama Supreme Court’s ruling? Why?
- Where do you stand on the practice of IVF?
- Do you think the ruling will have an impact outside of Alabama?
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