Alabama Supreme Court ruling puts IVF treatments at serious risk.
On February 16, 2024, the Alabama Supreme Court issued a ruling in a case that raises substantial concerns about the legal status and effect of IVF (in vitro fertilization) treatments in the state. A full copy of the decision can be downloaded at this link. In addition to the effects that the decision may have on IVF treatments in Alabama, it also muddies the waters on various other legal issues related to embryos created via the IVF treatment process. Parents considering IVF or those that have gone through the treatment already—particularly those in Alabama—should be aware of the changing legal landscape on these issues.
Case Background
In the case, known as LePage v. The Center for Reproductive Medicine, P.C., the plaintiffs filed a wrongful death claim under Alabama’s Wrongful Death of a Minor Act against their fertility clinic for an incident that resulted in the destruction of the plaintiffs’ embryos stored in the clinic’s cryogenic nursery. The trial court initially dismissed the claim, reasoning that the embryos were not considered a “person” or “child” under the law.
On appeal, the Alabama Supreme Court reversed that decision. In its ruling, the Court held that embryos—even those created and located outside of a biological uterus—are considered children under Alabama’s Wrongful Death of a Minor Act. Thus, the Alabama Supreme Court remanded that case back to the trial court to allow the wrongful death claims to go forward against the fertility clinic.
The Court did explain, however, that its rationale was limited to its interpretation of the definition of a “person” under the Wrongful Death Act. The same rationale or interpretation might not apply to criminal homicide charges, it reasoned, because “conduct that can support a criminal prosecution is almost always narrower than the conduct that can support a civil suit.” That said, the Court did not rule whether a person could be criminally prosecuted or convicted for causing the death of an out-of-uterus embryo, leaving that issue for future potential determination.
Immediate Legal Effect in Alabama
The immediate legal effect of this decision is Alabama is mostly uncertain. First, the plaintiffs in this case will be permitted to proceed on their wrongful death claims against the fertility clinics. But how the decision is interpreted and applied in other scenarios remains very much an open question. It does, however, raise a number of questions that are not answered by the ruling itself.
Other Legal Issues Created by the Ruling
This ruling is very likely to cause a substantial amount of follow-on litigation. Because the concept of personhood is deeply embedded throughout most states’ laws, a ruling that interprets that term broadly will necessarily raise questions of how that definition might apply in other circumstances. For example, Alabama courts may soon face lawsuits and questions over the following:
Varying definitions? Does Alabama law have different definitions of personhood that are applicable in different circumstances, such as criminal cases?
Does legal personhood exist on a spectrum, dependent on the legal circumstances?
Can anyone that destroys an embryo face civil liability under the Wrongful Death Act?
Can someone that destroys an extra-uterine embryo be subject to criminal prosecution?
Tax implications? Are parents of frozen embryos entitled to child tax credits for each embryo?
Legality of Embryo Disposition Agreements? Parents that undergo IVF treatment generally are required to execute an embryo disposition agreement. Those agreements generally require the parties to agree on how any extra (non-implanted) embryos will be stored, used, or destroyed under a variety of circumstances. If embryos are considered people under Alabama’s laws, is an agreement that dictates storage, use, or destruction of those embryos legal or enforceable?
Disposition of Embryos in Divorce? Some parents that undergo IVF treatment end up getting divorced before the embryos are all implanted, used, or destroyed. In those circumstances (and to the extent that an embryo disposition agreement does not govern the situation), the divorce court is generally tasked with deciding which party takes “ownership” of the embryos—which are generally treated as property in many divorce cases. However, if embryos are considered people under Alabama’s laws, can embryos continue to be treated as property in a divorce? If not, what standard applies to determining who gets the embryos in the divorce? Should trial courts start applying a “best interest” analysis, like they do in custody cases?
Effect on Georgia and Other States
For now, the effect of this ruling is limited to Alabama. The ruling is based on an interpretation of the Alabama Wrongful Death of a Minor Act, so it does not apply to other states’ interpretations of their own laws, nor does it apply federally/nationally. However, the decision is almost certainly an early indicator of how other states may start to approach the issue of IVF-created embryo personhood.
Because the Alabama ruling is very likely to be the first of many similar decisions across the country, individuals considering IVF treatment would do well to carefully consider the state of the laws in the jurisdiction that they reside (and the trend in those jurisdictions, as the laws may be rapidly changing). At Resurgens Legal Counsel, we understand that the IVF treatment process is extremely very physically, emotionally, and financially taxing. If you are considering embarking on that difficult journey, do not hesitate to contact us at (770) 765-7550 or scheduling a consultation online today.