Alabama Supreme Court IVF Embryo Opinion: Legal Analysis

The recent Alabama Supreme Court IVF embryo opinion has caused a national controversy and raises serious legal and practical concerns for the citizens of Alabama.

In this blog post, we will summarize the Court’s opinion in LePage v. The Center for Reproductive Medicine. We will also discuss the future implications for Alabama lawyers who handle wrongful death cases, the medical professionals who perform IVF in our state, and the people of Alabama who may seek IVF treatments in the future.

Alabama Supreme Court IVF Embryo Opinion Summary

In 2020, The Center for Reproductive Medicine (housed within the Mobile Infirmary Medical Center) had an unusual incident. Multiple couples had fertilized embryos stored in their fertility center. A patient at Mobile Infirmary Hospital somehow entered the cryogenic nursery, removed some of the embryos, and dropped them on the floor due to the subzero temperatures of the containers. The embryos were killed as a result.

The couples who had contracted for IVF services filed lawsuits against The Center for Reproductive Medicine and the Mobile Infirmary Medical Center under Alabama’s Wrongful Death of a Minor Act, Ala. Code § 6-5-391. The couples contended that the defendants were negligent for failing to secure the cryogenic nursey from unauthorized entry, which led to the wrongful death of their children. The trial court dismissed the lawsuit on the basis that the embryos did not qualify as “children” under the Act. The couples appealed to the Supreme Court of Alabama.

The entirety of the Alabama Supreme Court IVF embryo opinion is focused on whether such an embryo is a “child” under Alabama’s Wrongful Death of a Minor Act. Passed in 1872, the Act allows the parents of a child to seek punitive damages “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person,” provided that they do so within six months of the child’s passing. § 6-5-391(a).

Legal precedent was important in this decision. More than a decade ago, the Alabama Supreme Court decided that an unborn child was indeed a “child.” In Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), the court stated that an unborn child qualifies as a “minor child” under the Act, regardless of that child’s viability or stage of development. Therefore, it was already settled law in Alabama that a civil lawsuit could be filed for the wrongful death of an unborn child.

However, the Court had never decided whether an IVF embryo qualified as an “unborn child.” In the recent Alabama Supreme Court IVF Embryo opinion, the Court refused to make any exception to its previous stance.

The Court acknowledged that its decision could have negative effects on reproductive medicine in the future. Indeed, the Court did not disagree that IVF services would be more expensive in the future. Yet the Court stated that any such concerns should be addressed by Alabama’s legislature:

Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. 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.

Murder/Manslaughter vs. Wrongful Death

One of the big questions presented by this opinion is whether someone can be charged with a crime due to the death of an IVF embryo. To be clear, the recent Alabama Supreme Court IVF embryo opinion did not address whether someone can be charged criminally for causing the death of a fertilized embryo. The opinion focuses solely on civil liability (i.e. money damages.)

However, the Supreme Court did comment on the issue of criminal liability in response to an argument set forth by the IVF provider:

So even if it is true, as the defendants argue, that individuals cannot be convicted of criminal homicide for causing the death of extrauterine embryos (a question we have no occasion to reach), it would not follow that they must also be immune from civil liability for the same conduct.

The Court went on to note that Alabama’s criminal-homicide laws include unborn children as “‘person[s],'” “‘regardless of viability.'” 79 So. 3d at 600 (quoting Ala. Code 1975, § 13A-6-1(a)(3)). Apparently this commentary was concerning enough to cause UAB to Pause IVF Treatment.

Alabama’s Supreme Court has thus left open the possibility that a medical professional can be charged with murder or manslaughter for the death of an IVF embryo.

Implications of Alabama Supreme Court’s IVF Embryo Opinion

The implications will be significant for all types of Alabamians: medical professionals, lawyers, and especially those people who need IVF reproduction to bear children. Let’s take each in turn:

Implications for Medical Professionals

Medical professionals who perform IVF services should be gravely concerned. The Alabama Supreme Court has made clear that they can be financially responsible for killing an extrauterine IVF embryo. UAB, the state’s largest healthcare system, has already paused IVF services in the wake of the recent opinion.

But the opinion also raises serious practical concerns for medical professionals given the unique nature of IVF. In IVF, usually there are numerous fertilized embryos, but only a small handful are ever implanted in the woman’s uterus.

What is to be done with the extra embryos? Must the medical professionals preserve these embryos forever? Who pays for these preservation costs? If they do not preserve the embryos, can they be held liable for wrongful death? For criminal manslaughter?

These are weighty concerns. And there are no clear answers.

There is also a practical, financial component for healthcare providers. Medical professionals must have medical malpractice insurance. Given the recent Alabama Supreme Court IVF embryo opinion, we can expect these insurance rates to spike for IVF treatment providers.

Implications for the Legal Community

The Alabama Supreme Court IVF embryo opinion has opened Pandora’s box for the next generation of Alabama lawyers. It raises serious legal questions that will have to be answered in the years to come:

First, and most importantly, can the intentional destruction of an IVF embryo be murder?
If an IVF embryo is damaged, but not “killed”, does the embryo have a personal injury claim?
If the embryo is conceived via a sperm donor, does the donor receive half of the wrongful death claim proceeds?
Should our legislature amend the Wrongful Death of a Minor Act to protect IVF providers? If so, how is the best way?
Should our legislature amend its criminal laws to protect IVF providers from criminal prosecution?
Can the parents of an IVF embryo contractually waive/release a wrongful death claim due to embryo destruction prior to destruction?
How do lawyers representing IVF providers advise their clients about the standard of care?
How do lawyers representing IVF providers negotiate insurance policy language?

This list could be much longer, but you get the idea.

Implications for Hopeful Parents

The most concerning implication is for those who want and need IVF to bear children. There can be little doubt the Alabama Supreme Court IVF embryo opinion will make IVF less accessible.

There are only five IVF treatment providers in the state of Alabama. And the largest, UAB, has already paused IVF. I would expect more “pauses” to come.

Even if IVF services continue, the cost will necessarily increase due to increased liability of the providers. Insurance companies will have to charge higher premiums due to wrongful death liability exposure. In order to continue providing IVF services, medical professionals will have to pass those costs on to the consumers. The hopeful young couples who are spending their savings or taking out loans to fund their dream of having a child.

The cost of IVF in Alabama is between $10,000 and $15,000 according to Alabama Fertility, although other sources indicate the cost is higher. Even assuming the $10-15k range, IVF is already expensive by any standard. Due to the recent Alabama Supreme Court IVF embryo opinion, we can expect the cost to significantly increase.

Where Do We Go From Here?

It is this author’s opinion that the Alabama legislature should take action. Even though I am a lawyer that files wrongful death lawsuits, it should not be the policy of our state to discourage IVF reproduction.

Our state legislature should consider amending the Wrongful Death of a Minor Act to exclude causes of action for the deaths of extrauterine embryos. It should also consider amending our criminal homicide statutes to protect IVF treatment providers from criminal prosecution.

By taking legislative action, we can ensure that IVF treatment remains a realistic option for those who need this advanced technology to achieve their dreams of becoming a parent.