Embryologists analyze sperm cells

Embryologists analyze sperm cells in the lab at the Heartland Center for Reproductive Medicine in Omaha, Nebraska on May 10, 2022.

(Photo: Misty Prochaska For The Washington Post via Getty Images)

'Radically Theocratic': Alabama Supreme Court Gives Frozen IVF Embryos Status of Children

"The movement to confer personhood status to IVF embryos is long-standing and one example of the broad-reaching implications of anti-abortion politics," said one expert. "We can expect more cases like this one."

In a case brought by patients of a fertility clinic in Alabama, a Friday ruling by the state's Supreme Court flew largely under the national radar over the weekend, but legal experts and reproductive justice advocates warned Monday that the "radically theocratic" decision could have major implications for the U.S. abortion rights movement as well as people struggling with infertility.

In LePage v. Mobile Infirmary Clinic, Inc, the Alabama Supreme Court ruled 7-2 that a couple has the right to sue an in vitro fertilization (IVF) clinic for the "wrongful death" of their frozen embryos, which the court classified as children who must be protected by Alabama's Wrongful Death of a Minor Act.

The majority opinion quoted the Bible extensively, as well as citing Alabama Constitution Section 36.06, which despite being a government document states that a person's life "cannot be wrongfully destroyed without incurring the wrath of a holy God."

Alabama passed a Sanctity of Life Amendment in 2018, adding to its constitution language which says, "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."

The case stems from the experience of several patients of an IVF clinic where a person allegedly entered the facility through an unlocked door and removed frozen embryos from a freezer and then accidentally dropped them on the floor, rendering them unusable for the patients who hoped to become parents.

Writing for the majority, Associate Justice Jay Mitchell said the state's Wrongful Death of a Minor Act "is sweeping and unqualified."

"It applies to all children, born and unborn, without limitation," Mitchell wrote. "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."

"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,'" added Mitchell, quoting Jeremiah 1:5 in the Bible.

While the LePage case pertains to an alleged accident at one specific clinic, the loss or destruction of embryos is inherent to the IVF process. IVF has only a 50% success rate and embryos that don't implant and lead to a pregnancy are lost in the process, while the American Society for Reproductive Medicine estimates that between 1-24% of frozen embryos are abandoned by fertility clinic patients and are ultimately destroyed.

If all 1.5 million frozen embryos in the U.S. have the same rights as children, asked one critic, "who are they fixing to start charging with murder?"

In a court filing submitted by the Medical Association of the State of Alabama, the group warned that "the potential detrimental impact on IVF treatment in Alabama cannot be overstated" if embryos were to be classified as children covered under the state's wrongful death law.

"The increased exposure to wrongful death liability as advocated by the Appellants would—at best—substantially increase the costs associated with IVF," said the association. "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."

Abortion rights groups have warned that the U.S. Supreme Court's overturning of Roe v. Wade in 2022 could have implications for fertility treatments if right-wing courts begin to classify embryos as "children," as the pro-forced pregnancy movement has with fetuses.

"The movement to confer personhood status to IVF embryos is long-standing and one example of the broad-reaching implications of anti-abortion politics," said Risa Cromer, an anthropology professor at Purdue University. "We can expect more cases like this one from Alabama."

Dana Sussman, deputy executive director of the reproductive rights group Pregnancy Justice, toldRolling Stone that lawyers for the plaintiffs alluded to the U.S. Constitution's equal protection clause, suggesting that embryos created via IVF should be treated equally to those conceived without medical intervention.

"It leaves the door open wide enough to make this argument with a straight face the next time around... in the context of not just babies born through IVF, but fetuses or 'unborn life' as having these 14th Amendment rights," Sussman told the outlet.

Barbara Collura, president and CEO of Resolve: The National Infertility Association, called the ruling "a terrifying development for the 1 in 6 people impacted by infertility who need in vitro fertilization to build their families."

"This anti-family ruling will likely have devastating consequences, including impacting the standard of care provided by the state's five fertility clinics," Collura said. "This new legal framework may make it impossible to offer services like IVF, a standard medical treatment for infertility. It also remains unclear what this decision means for families who currently have embryos stored at these clinics."

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