The decision may have concerning repercussions.
The Alabama Supreme Court declared that embryos created through in vitro fertilization are considered children on Feb. 16. The decision was issued after wrongful death cases were brought by three couples who’s frozen embryos were destroyed at a fertility clinic operated by the Center for Reproductive Medicine, P.C.
Between 2013 and 2016, James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne went to the clinic to undergo IVF treatments, according to an opinion issued by the Supreme Court of Alabama. The plaintiffs contracted to keep their remaining embryos in the cryogenic nursery operated by the center, located in the same building as the hospital Mobile Infirmary Medical Center.
In December 2020, a patient of Mobile Infirmary Medical Center entered the fertility clinic through an unsecured access point and removed several embryos, which they promptly dropped on the floor. This killed the embryos, five of which were collectively the plaintiffs’.
The couples filed two lawsuits against the Center for Reproductive Medicine, P.C. and the Mobile Infirmary Association. The LePages and Fondes filed a joint lawsuit while the Aysennes filed separately. All of the plaintiffs asserted claims under Alabama’s Wrongful Death of a Minor Act, which allows parents to recover punitive damages for their child’s death, seeking compensatory damages for mental anguish and emotional distress. The LePages and Fondes asserted common-law claims of negligence and the Aysennes asserted negligence and wantonness as well as breach-of-contract and bailment claims against the center.
The Center for Reproductive Medicine, P.C. and the Mobile Infirmary Association filed joint motions to dismiss the wrongful death cases and other claims asserted by each plaintiff. The trial court granted the motions and concluded that the loss of the embryos did not count as loss of human life, which the plaintiffs appealed. The only claims that were allowed to continue were the Aysennes’ breach-of-contract and bailment claims.
The Alabama Supreme Court opinion stated “the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.” As a result, the state Supreme Court reversed the trial court’s dismissal of the plaintiffs’ wrongful death cases.
In the aftermath of the court’s decision, some Alabama fertility clinics paused IVF treatments and services. Doctors, patients and lawmakers questioned the implications of this ruling and what it meant going forward.
Gov. Kay Ivey signed a bill into law to protect IVF services on Wednesday. The new law protects patients and providers of IVF treatment from legal liability by providing civil and criminal immunity to providers and patients in the case of destruction or damage to embryos. The law will apply retroactively. The bill states, “no criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.”
As the bill is remedial, it will not be the last piece of legislation regarding this complex issue. Ivey stated, “IVF is a complex issue, no doubt, and I anticipate there will be more work to come, but right now, I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately.”
