Alabama Supreme Court Holds Embryos Are “Children”: The Impact Across the Assistive Reproductive Technology Industry

On February 16, 2024, the Alabama Supreme Court issued a first-of-a-kind decision holding that frozen embryos used for in vitro fertilization (IVF) are “children” within the meaning of the Alabama Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975.¹ This case consolidated other cases brought by couples whose frozen embryos were stored at a fertility clinic in Mobile, Alabama, and were destroyed when a patient removed several embryos and inadvertently dropped them on the floor.²

The Wrongful Death of a Minor Act, enacted in 1872, allows for parents of deceased children to seek punitive damages where “the death of a minor child is caused by the wrongful act, omission, or negligence of any person.”³ The act does not define “child,” though Alabama courts have previously held that it applies to “unborn children.”⁴ This ruling expands the definition of “child” even further by including frozen embryos — which are not gestating in a human womb — within the definition of “unborn child.”⁵ While the ruling limits this definition of “child” to the civil context, it leaves the question of criminal liability open.⁶

The impact the LePage decision may have on fertility treatment in the United States is hard to overstate. In addition to its effect on the availability and cost of fertility treatments for patients in Alabama, the ruling will affect the assisted reproductive technology (ART) industry. The impact on companies that research, develop, design, manufacture, sell, and use ART products is also unprecedented.

The Alabama Supreme Court did not address the impact on the ART/IVF industry.⁷ For example, the decision does not answer whether only clinics may be held liable under the statute or whether individuals may also be held liable for the loss of frozen embryos. The ruling does not address what fertility clinics can do with unused embryos (for example, when a family is complete or when frozen embryos are no longer needed), what fertility clinics can do with discarded embryos (for example, due to chromosomal abnormalities, failure to properly develop, or genetic disorders), or what duties arise when embryos are donated to other families, donated to science, or fail to develop in utero after implant. Recognizing these important questions, the state legislature is working on a bipartisan effort to enact legislation to address the ruling and ensure that IVF treatment is still available in Alabama.⁸

While this case is limited to Alabama’s interpretation of an Alabama statute and its own constitution, the Alabama Supreme Court relied on the U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.⁹ Thus, there is growing concern that courts in other states could issue similar rulings or state lawmakers could pass related legislation, leaving clinics in multiple states potentially vulnerable to lawsuits over frozen embryos and hindering access to fertility treatment. Those in the IVF industry should be prepared for a changing landscape that may extend beyond IVF patients or clinics in Alabama.

Although difficult to know what and who will be implicated by the Alabama decision, companies that provide products or services for IVF should consider the following measures to mitigate risk:

Where possible, consider appropriate contractual arrangements for losses arising from the use of fertility products in any part of the IVF procedure in the event of a wrongful death claim or punitive damages claim (recognizing that punitive damages are not subject to indemnification in most states).

Although enforceability will depend on the state, consider updating informed consent forms and other patient forms to waive the right to file a claim for wrongful death or wrongful death of a minor if patients’ embryos deteriorate at any point in the IVF cycle (recognizing that this would not limit third-party claims); also consider additional patient education before any procedure.

Consider reviewing sales records to determine whether product sales include Alabama or other states of concern and consult with sales personnel, where applicable, to determine whether sales include to clinics with multiple locations, including in Alabama.

Consider increasing oversight and understanding of product supply chains, including which products are entering which state, and whether Alabama residents are traveling to out-of-state clinics to use relevant products. Consider whether products are ultimately being sold and utilized in states of concern even if entering the stream of commerce elsewhere.

Consider what legal liability, if any, is covered by company insurance policies, and update or change policies to increase coverage. 

¹ LePage v. Center for Reproductive Medicine, P.C., 2024 WL 656591, *1 (Ala. 2024).
² Id.
³ Id. at *4 (quoting § 6-5-391, Ala. Code 1975) (emphasis added).
⁴ Id. at *4-6.
⁵ Id.
⁶ Id. at *7 (the question of whether “individuals can[] be convicted of criminal homicide for causing the death of extrauterine embryos” is “a question we have no occasion to reach”).
⁷ Assisted reproductive technology or ART “includes all fertility treatments in which either eggs or embryos are handled. The main type of ART is in vitro fertilization (IVF).” Assisted Reproductive Technology (ART), CENT. FOR DISEASE CONTROL, https://www.cdc.gov/art/artdata/index.html#:~:text=ART%20includes%20all%20fertility%20treatments,woman's%20uterus%20through%20the%20cervix (last visited Feb. 25, 2024).
⁸ It is unclear how the state legislature will address or supersede the Alabama Supreme Court’s reliance on the Alabama constitution.
⁹ See LaPage at *5 (noting that Dobbs held that “even as far back as the 18th century, the unborn were widely recognized as living persons with rights and interests”).