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Alabama Supreme Court Decision Jeopardizes In Vitro Fertilization, Prompts Legislative Action

By Vaidehi Mehta, Esq. | Updated by Joseph Fawbush, Esq. | Last updated on

Since the first successful “test tube baby” in 1981, in vitro fertilization (IVF) has become a beacon of hope for countless individuals and couples striving to overcome infertility. Over the years, the procedure has helped millions of people to become parents. Nearly half of Americans have had fertility treatments or know someone who has, according to a Pew Research Survey.

But a recent ruling in the Alabama Supreme Court jeopardized the future of this procedure. We’ll summarize the underlying litigation before laying out what consequences the ruling could have for hopeful parents who may wish to use IVF in the future, and what Alabama state legislators have done in response.

An Unfortunate Incident

The lawsuit before the Alabama Supreme Court was a consolidated appeal of a few similar cases that had recently gone through the Alabama court system. In each case, the plaintiffs were couples who went to a fertility clinic to undergo IVF treatments.

Doctors were successful in helping these parents conceive children by joining the mother's eggs and the father's sperm in test tubes outside of the mother's body. After artificially gestating each embryo for a few days, the clinic placed them in the clinic’s cryogenic nursery, located in the same building as the local hospital.

A cryogenic nursery is designed to keep extrauterine embryos alive at a fixed stage of development by preserving them at an extremely low temperature. Such embryos, if properly safeguarded, can remain alive for at least several decades. Each parent produced several embryos via IVF, and some of them were implanted and resulted in the birth of healthy babies. As for the remaining embryos, the parents contracted to have them kept in the cryogenic nursery.

Again, the nursery was attached to a hospital. A patient from that hospital managed to wander into the clinic through an unsecured doorway; they entered the nursery and removed several embryos. The subzero temperatures of the vials were so cold that they “burned” the patient’s hand, causing them to drop the embryos on the floor—which destroyed the embryos.

Parents Sue the Facilities

The plaintiffs each brought lawsuits against the center operating the fertility clinic and the association operating the hospital. They asserted claims under an Alabama law called the Wrongful Death of a Minor Act, which allows the parents of a deceased child to recover punitive damages for the death. They also made alternative claims under common-law legal theories should their claims under the Act fall through, but the focus here is their claims under the Act.

Let’s take a moment to establish the relevant baseline in this case. There are a few points that no one in this case (neither of the parties nor the court) dispute. They all agree that life begins at fertilization of an unborn child. They also agree that, typically, an unborn child counts as a "human life, " "human being, " or "person” throughout all stages of an unborn child's development, regardless of viability.

Of course, these are far from universally accepted stances; any given person wouldn’t necessarily agree, nor do other state governments work from the assumption that life begins at fertilization. But it’s important to note that this was never debated in the litigation and the court never addressed it. Rather, the court took it as a given that life begins at fertilization and based its conclusions on that premise.

AL Supreme Court Rules

It should come as no surprise that many dicey questions were raised by the circumstances, and as such, many difficult legal questions were brought by the parties: should extrauterine babies be considered the same as in-utero babies, ethically? Does the Fourteenth Amendment of the U.S. Constitution apply to extrauterine babies? What are the public-policy implications of treating extrauterine children as human beings?

Unsurprisingly, the Alabama Supreme Court dodged those questions under the “Constitutional avoidance” doctrine. This principle says that courts should avoid deciding an issue based on constitutional questions when it can be sufficiently decided on other grounds, such as based on statutory interpretation. The rationale behind this principle is to minimize unnecessary rulings on constitutional matters, thereby maintaining stability and the integrity of constitutional law. Of course, this principle does often lead to narrower court decisions that do not set broad precedents, allowing more freedom for legislatures to make new laws within established boundaries of constitutional law.

The Alabama Supreme Court decided it didn’t need to open a constitutional can of worms. To them, the plain language of the Wrongful Death of a Minor Act is sufficiently clear on its own to interpret. The main question that the parties in the litigation are disputing is: is there an unwritten exception to the Wrongful Death of a Minor Act for unborn children who are not physically located "in utero" (inside a biological uterus) at the time they are killed? The court’s interpretation was that the Act applies to all unborn children, regardless of whether they are inside or outside the uterus.

Far-Reaching Consequences

The defendants in the case pointed to public policy concerns that would arise if the Court didn’t find an exception for extrauterine children. Specifically, they argued that including them would substantially increase the cost of IVF in Alabama and thus make cryogenic preservation burdensome. Other attorneys and experts in reproductive health have also chimed in with the opinion that such a ruling would raise not only costs but also risks of IVF, both for patients and medical practitioners. One reason is that if embryos are considered people, the cost of medical malpractice insurance will rise. The court said what courts often say to arguments like this: that may be true, but it’s the Legislature’s job to fix that, not ours. 

The practical effect of the ruling within Alabama has been immediate. Right after the decision came down, three IVF providers in the state announced that they would be pausing IVF services.

The ruling raises many further questions. IVF is often not successful after just one cycle, so the current practice is to freeze multiple embryos in a cycle, which also makes it more affordable if the first one doesn’t take. But if embryos are considered people, do all embryos created in an IVF cycle have to be implanted? If that was the case, this would of course incentivize prospective parents to create only one or two embryos per cycle, making it a much bigger financial burden for many couples. Or even if they don’t all have to be implanted, do all un-implanted embryos have to be stored indefinitely to avoid being “murder” under the law?

Alabama Legislature Responds

Since the Alabama Supreme Court avoided any constitutional law questions, Alabama legislators were able to address the underlying law. They did so on February 29. In response to the closures of the clinics, both chambers of the Alabama legislature passed measures that would protect clinics from lawsuits. If it becomes law, as expected, it should keep IVF clinics open in the state moving forward. However, the law does not necessarily address all the legal issues at play in giving embryos legal personhood, such as what clinics must do with unused embryos. It is possible future legislation could regulate the storage of embryos and perhaps address other issues raised by the ruling. So far there remains uncertainty about the full ramifications of the decision.

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