By Hannah Werner

On February 16, 2024, the Alabama Supreme Court rendered an extraordinary decision that impacts the health care of all individuals. In this ruling, the Alabama Supreme Court decided that “embryos created through in vitro fertilization (IVF) should be considered children.” (Johns Hopkins Bloomberg School of Public Health). Since the ruling, many reproductive clinics and doctors ceased to provide IVF care, and many individuals hoping to become parents are left without access to the reproductive health care they desire.

The plaintiffs in the Alabama Supreme Court case are couples that underwent IVF and their embryos (which were stored in a hospital cryo-preservation unit) were destroyed when a patient of the hospital dropped the embryos on the ground, thus rendering them useless for future use. These couples brought an action against the hospital and fertility clinic for, in part, Wrongful Death of a Minor. After making its way to Supreme Court of Alabama the court ultimately decided that the Wrongful Death of a Minor Act applies to embryos and unborn children. Therefore, these embryos are children or people, despite not developing into a fetus. 

This court decision fundamentally alters reproductive health in Alabama, as clinics are now concerned about civil or criminal liability should they provide IVF treatment for their patients. Johns Hopkins Bloomberg School of Public Health states that “Even fresh embryos may be damaged and not able to be transferred. So there was real concern about the legal consequences given that these embryos, these in vitro embryos, have been declared persons under the law in Alabama.” Because these plaintiffs sought damages against the hospital and fertility clinic, health care providers are concerned that they may be held liable should anything occur to the embryos in their immediate care.

In a post-Dobbs world, Alabama and other states have already eliminated an individual’s right to terminate a pregnancy. Now, the Alabama Supreme Court is taking the next step to make it difficult for health care providers to administer other reproductive health measures to patients seeking to have children. Essentially, the apparent import of the Alabama Supreme Court decision is that it would have its residents to conceive “naturally”  and not become pregnant by any “artificial” means. The consequences of this decision are conflicting for the people of Alabama. With the Dobbs decision, Alabama residents must give carry a fetus to term even if they do not want to be pregnant or if it is dangerous for the health of the mother. With the new decision at issue here, those that cannot conceive “naturally” now cannot become pregnant by other means because their reproductive health providers fear that they will be punished should anything (intentionally or unintentionally) occur to their embryos and, as a result, will no longer offer such services within Alabama.

With this decision, the Supreme Court of Alabama makes clear that a “child” (even one that has not developed into a fetus yet) has more rights that prospective parents, healthcare providers, and those carrying a child. Given the nascency of the Alabama Supreme Court’s decision, other states have not yet followed this path, but given the push by conservatives to ban abortions altogether in the wake of the Dobbs decision, it stands to reason that other conservative states may follow suit. This makes the ramifications of the Alabama Supreme Court decision even more significant.

Joshua Sharfstein, The Alabama Supreme Court’s Ruling on Frozen Embryos, Johns Hopkins Bloomberg School of Public Health (Feb. 27, 2024)

About the Author:

In May of 2020, Hannah graduated with a B.A. in Public Relations and a B.A. in Psychology from Auburn University. After working at Ankin Law Office for almost a year, Hannah discovered an interest in law and joined the Chicago-Kent community. Hannah is currently a 2L representative for the Society of Women in Law, as well as a member of various organizations matching her passions, such as the First-Generation Law Student Association and the Chicago Kent Animal Legal Defense Fund.