The Alabama Supreme Court opinion holding that embryos are children, explained

Did Alabama’s Supreme Court just ban IVF treatments?

The moment the US Supreme Court released its decision overruling Roe v. Wade, pretty much everyone who closely follows constitutional law wondered which rights would be next on the chopping block. Justice Clarence Thomas stoked these fears with a concurring opinion calling for the Court to “reconsider” the rights to contraception, marriage for same-sex couples, and the right to choose who you have sex with (and whether those sexual partners share your gender). Justice Brett Kavanaugh, meanwhile, published his own concurrence claiming many of these rights were safe.

In Alabama, at least, it now appears likely that the right to conceive a child through in vitro fertilization will be the next to fall.

On Friday, that state’s Supreme Court released an opinion holding that frozen, fertilized embryos stored in a cryogenic facility count as a “child” under the state’s law permitting lawsuits while a child is killed. As the Medical Association of the State of Alabama warned the state’s justices before they handed down this decision, this decision is likely to “substantially increase” the cost of a common fertility treatment pursued by many parents who have trouble conceiving. Indeed, it could make these costs “prohibitive” (or, at least, even more prohibitive than they already are).

In vitro fertilization (“IVF”) is a process where human eggs are fertilized outside of the womb, and later implanted in a human uterus. Typically, more eggs are fertilized than will actually be used, and the unused eggs are frozen. Among other things, this allows the unused eggs to be used later if the couple wants to have another child, and it also allows them to be used if the first attempt to implant some of the eggs does not take.

At some point, however, the stored eggs are destroyed or used in medical research. Moreover, according to the Mayo Clinic, “not all embryos will survive the freezing and thawing process.” So the destruction of at least some embryos is a normal part of IVF.

The potential implications of the Alabama Supreme Court’s decision in Burdick-Aysenne v. Center for Reproductive Medicine, the decision holding that Alabama’s Wrongful Death of a Minor Act extends to frozen embryos, are pretty obvious. If it is illegal to destroy an embryo, then it is unclear if IVF can happen. And, if it can happen, medical facilities may have to pay outlandish costs to store frozen embryos long after it is clear that no one will ever use them.

That said, there are some quirks in Alabama law that may prevent this decision from reaching too far. The Wrongful Death of a Minor Act only permits civil lawsuits in limited circumstances. And Alabama’s criminal homicide law applies only to “an unborn child in utero” — meaning that the embryo or fetus is inside a uterus — so it is far from clear that someone may be criminally prosecuted for homicide if they harm an embryo stored in a cryogenic facility.

Nevertheless, Burdick-Aysenne is the latest of several decisions by the state Supreme Court that read that state’s law creatively to expand the state’s authority over fetal or embryonic life. And the Alabama Supreme Court is an elected body controlled entirely by Republicans. So there is good reason for Alabamans seeking IVF treatment to fear that this court will shut down such care altogether.

Burdick-Aysenne involves activity that should be illegal, just not necessarily under Alabama’s wrongful death statute

The facts underlying the Burdick-Aysenne case are very unfortunate, and they allegedly involve negligent actions that very much should have triggered a lawsuit.

Three couples received IVF treatments, and many of the resulting embryos were stored in a medical center’s cryogenic nursery. According to the state Supreme Court, in 2020 “a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway,” where they removed several embryos and destroyed them. The couples then sued the medical facility for failing to adequately secure these embryos.

So, if you ignore the fact that Burdick-Aysenne involves fertilized embryos, it could be a fairly unremarkable case. The plaintiffs entrusted something precious to the defendants’ care, and the defendants failed to protect it. In addition to suing under the Wrongful Death of a Minor Act, the plaintiffs also raised ordinary negligence and breach-of-contract claims.

That said, they had good reason to prefer a court decision awarding them victory under the wrongful death statute because that statute allows them to collect more money than they would be entitled to under their alternative legal theories. As Justice Will Sellers wrote in a partial dissent, “these cases concern nothing more than an attempt to design a method of obtaining punitive damages.”

The state’s wrongful death statute permits the parents of a deceased “minor child” to sue anyone who caused the death of that child, if the death was “caused by the wrongful act, omission, or negligence of any person, persons, or corporation.” The plaintiffs claimed that a frozen embryo counts as a “minor child” under this statute.

Most of the state’s justices obliged this attempt to read the wrongful death statute broadly, and they did so in an opinion that is laden with the sort of rhetoric commonly found in anti-abortion literature. Among other things, the court’s majority opinion claims that a provision of the state constitution proclaiming that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate” requires Alabama’s courts to “construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children” — at least when such a construction is “lawful and appropriate.”

The path that led the state Supreme Court to conclude that a frozen embryo counts as a “minor child,” however, involved some fairly tortured construction of state law. And it also is just the latest step in a series of decisions stretching back more than a dozen years.

In 1993, the state Supreme Court held that the wrongful death statute does not apply “if the fetus was not viable at the time of death.” This decision, however, was overruled in Mack v. Carmack (2011).

Mack justified this decision to overrule precedent by pointing to a new Alabama criminal law, which made it a homicide crime to kill “an unborn child in utero at any stage of development, regardless of viability.” The Wrongful Death of a Minor Act permits civil lawsuits, not criminal prosecutions, so it is far from clear why this amendment to the state’s criminal law should have any impact whatsoever on a separate, civil statute.

Nevertheless, Mack concluded that “it would be ‘incongruous’ if ‘a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly.’” And so it read the criminal statute to effectively extend the scope of Alabama’s civil law.

More recently, in Burdick-Aysenne, the defendants argued that Mack does not apply to cryogenic embryos. Again, Mack relied on a criminal statute that prohibits killing an “unborn child in utero” to extend the state’s civil wrongful death statute. But embryos stored in a cryogenic facility are not “in utero.” The Alabama Supreme Court, however, rejected this argument.

If you are confused by all of these legal developments, you should be. In Mack, the state Supreme Court held that a criminal statute could be read to modify an entirely separate, civil statute. Then, in Burdick-Aysenne, the Court held that the civil statute should be extended again to apply to embryos outside of the uterus — even though the statute that the court relied on in Mack applies only to an “unborn child in utero.”

Needless to say, this is not how legal interpretation typically works — especially in an age when “textualism,” the idea that judges should hew closely to a statute’s text while interpreting it, is very much in vogue.

So what are the broader implications of Burdick-Aysenne?

Two fairly strong legal arguments could be raised in a future case to limit the scope of Burdick-Aysenne — and to potentially, prevent the catastrophic consequences for IVF patients predicted by the state medical association.

One is that the state’s wrongful death of a minor statute only allows three individuals to sue if a child (or, after Burdick-Aysenne, a frozen embryo) is killed: the mother, the father, or the child’s “personal representative” — the term Alabama uses for the executor of a deceased person’s estate. So, in the hypothetical case where a cryogenic facility destroys long-unused embryos produced by a long-ago-forgotten IVF procedure, the facility could only be sued by one of these three individuals.

The other argument that could be raised to limit the scope of Burdick-Aysenne is that the state’s criminal homicide law only applies to “an unborn child in utero.” So, even if the wrongful death statute permits civil lawsuits against a medical facility, the state’s criminal law explicitly does not permit prosecutions for destroying an embryo that is not inside a uterus.

But the tortured legal reasoning animating Mack and Burdick-Aysenne should cause any medical facility pause before they rely on the explicit language of Alabama’s criminal statutes to determine if they can be prosecuted. If the court can hold that a criminal statute amends a different, unrelated civil statute, then there’s no guarantee it won’t read that criminal statute to exclude the words “in utero.”

More broadly, the story of reproductive freedom in post-Roe America has been a story of uncertainty.

After Roe was struck down, a raft of criminal abortion prohibitions suddenly sprung to life in many red states. Many of these prohibitions have never been construed by any court, and some health providers have been reluctant to perform even lifesaving abortions that are protected by state law — because they have no way of knowing if the state courts will honor that protection.

In Alabama, that uncertainty now extends to medical facilities that provide IVF care.