Alabama Supreme Court Rules That Frozen Embryos Are 'Children'

In a theology-heavy ruling, the Alabama Supreme Court will allow a couple to sue for the "wrongful death" of their frozen embryos obtained through IVF.

The Alabama Supreme Court ruled Friday that frozen embryos are children, which pro-choice rights groups have warned could have dangerous implications for fertility treatments such as in vitro fertilization.

The Alabama Supreme Court on Friday reversed Mobile County Circuit Court Judge Jill Parrish Phillips’ decision to dismiss a lawsuit in which a couple sued an Alabama fertility clinic and hospital for the “wrongful death” of their frozen embryos in a ruling that was riddled with theology. The couple’s frozen embryos were destroyed after a hospital patient who accessed the freezer that held the embryos dropped them on the floor. The ruling means that the couple can sue for wrongful death.

“[T]he Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation,” the ruling said. “It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

The ruling pointed to the Alabama Constitution Section 36.06, which argues that each person was made in God’s image, meaning each life has an incalculable value that “cannot be wrongfully destroyed without incurring the wrath of a holy God.”

“Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life ― that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” the ruling stated, referring to the Alabama Constitution’s Section 36.06.

The Medical Association of the State of Alabama previously warned that such a ruling could bring about harmful consequences for fertility treatment in Alabama, according to

“The potential detrimental impact on IVF treatment in Alabama cannot be overstated,” according to a brief filed by the medical group, reported. “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 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.”

Alabama has a total abortion ban, which went into effect after the U.S. Supreme Court overturned Roe v. Wade with the monumental Dobbs decision in June 2022.

The fight over abortion is implicitly linked to fertility treatments in the same way that anti-abortion activists argue life begins before birth and should be protected. With a treatment like IVF, a patient’s eggs are fertilized with sperm outside of the body before being implanted into the patient’s uterus. However, because a patient only needs one egg to successfully become pregnant, leftover eggs may be discarded.

Democrats and pro-choice advocates across the country have been working to protect access to fertility treatments against the anti-abortion movement since the Roe’s reversal.

Last month, Sen. Tammy Duckworth (D-Ill.) and Rep. Susan Wild (D-Pa.) introduced the Access to Family Building Act, a bill that could proactively establish IVF and other fertility treatments as a right for patients and physicians.

By contrast, some Republicans in Florida, which is a notably anti-choice state like Alabama, introduced a bill in January that would threaten the presence of fertility treatments by allowing parents to seek civil damages for the death of a fetus.

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