Significant controversy has arisen after the Alabama Supreme Court issued a decision declaring cryogenically frozen embryos are “extrauterine children.”
Many are concerned that this ruling will hurt families seeking to conceive a child via in vitro fertilization, a process of fertilizing a mother’s egg outside of the womb.
Amid policy and political confusion in the aftermath of the decision, here are the answers to some commonly asked questions.
What are the facts of the case?
Between 2013 and 2016, three couples engaged the IVF services of the Alabama Center for Reproductive Medicine affiliated with the Mobile Infirmary medical center. After their IVF treatments — some of which “resulted in the births of healthy babies,” according to the majority opinion — the couples each agreed to have their remaining embryos stored in the hospital’s “cryogenic nursery.”
The majority opinion relates that, in December 2020, a patient in the hospital entered the cryogenic nursery through an unsecured doorway and proceeded to remove several embryos. Because the embryos are kept at subzero temperatures, they “freezer burned the patient’s hand, causing the patient to drop the embryos to the floor, killing them.”
The plaintiffs sued under Alabama’s Wrongful Death of a Minor Act of 1872, which the court ruled in 2011 and 2012 applies to unborn children. The “Sanctity of Unborn Life” provision of Alabama’s Constitution also requires the court to interpret statutes that protect the lives of born and unborn children equally.
Does the decision prohibit IVF procedures?
No, the decision does not legally prohibit IVF, but the court acknowledges that it may make providing and obtaining IVF more difficult.
The Medical Association of the State of Alabama argued in its amicus brief on the case that recognizing embryos as children would “substantially increase the cost of IVF in Alabama,” making securing the embryos exceedingly difficult.
The court, however, rejected the validity of these arguments, saying that they instead “belong before the Legislature, not this Court.”
“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,” Justice Jay Mitchell’s opinion for the majority said.
The University of Alabama Birmingham health center, the state’s largest healthcare system, suspended its IVF program on Wednesday following the ruling, saying that it did not want to be held liable for laboratory accidents.
Infirmary Health also suspended its IVF treatments for patients effective Feb. 24.
How does this case affect the debate on when life begins?
Both the plaintiffs and the defendants in the case acknowledged that life begins at conception and personhood should be granted “throughout all stages of an unborn child’s development, regardless of viability,” according to the majority opinion.
“All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” Mitchell wrote.
The only point of disagreement between the plaintiffs and the defendants is whether or not there should be an exception to the Wrongful Death of a Minor statute for children not “inside a biological uterus.”
Does the majority opinion invoke a religious argument?
No, Mitchell’s majority opinion does not reference a religious argument.
Chief Justice Tom Parker’s concurring opinion heavily relies upon the theological history of the phrase “sanctity of life” to provide context to its presence in the Alabama Constitution. This references various religious thinkers and several passages from the Old Testament.
Parker argued that creating an exception for the wrongful death statute “would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image.”
What does it mean for federal law?
The plaintiffs argued that any exceptions for the wrongful death statute not to cover extrauterine children would violate the federal 14th Amendment’s equal protection clause, which prohibits states from withholding protections from people based upon “immutable features of their birth or ancestry,” according to Mitchell’s opinion.
Mitchell, however, argues that although the 14th Amendment arguments are “weighty concerns,” the wrongful death statute is clear enough as it stands.
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“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Mitchell said.
Attorneys for both the Center for Reproductive Medicine and the Mobile Infirmary medical center denied the Washington Examiner’s request for comment because the litigation “remains pending.”
