Alabama Supreme Court to decide if dropping embryo in IVF clinic is ‘wrongful death’ of ‘person’


The Alabama Supreme Court heard oral arguments Tuesday in a pair of court cases raising the question of whether a fertilized egg in a fertility clinic is a human life for purposes of a wrongful death lawsuit. (Screengrab via YouTube/WALA)

The State of Alabama, which has already announced an intention to criminally prosecute women who terminate pregnancies with abortion pills, is grappling with the legal consequences of its staunch stance against abortion as its highest court considers whether an embryo in a fertility lab is a “human life.” The Alabama Supreme Court heard oral arguments Tuesday in a case in which six individuals say the accidental destruction of their lab embryos should be actionable in a wrongful death lawsuit.

In 2022, a judge in Mobile dismissed a lawsuit filed by families who sued the Mobile Infirmary for negligence and wrongful death. Three couples alleged that the hospital negligently allowed a patient to wander into the embryology lab, pick up five fertilized embryos, then drop those embryos rendering them unusable for the in vitro fertilization (IVF) process.

The couples, James LePage and Emily LePage, William Tripp Fonde and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne, appealed that ruling and identify themselves in court filings as the “Parents” of their respective embryos. They point to Alabama’s constitution, as amended in 2018, which “acknowledges, declares, and affirms 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.”

The Alabama Supreme Court heard oral arguments in the case Tuesday in a special argument session held on the University of South Alabama campus.

“Unborn child” is defined by the state legislature as, “an individual organism of the species homo sapiens from fertilization until live birth.” Indeed, and as the plaintiffs argued, the legislature further clarified that an “unborn child” under state law is defined as ” The offspring of any human person from conception until birth,” and specifically includes, “any unborn child in utero at any stage of development, regardless of viability.”

Alabama’s wrongful death statute defines wrongful death of a minor as, “When the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either[.]” It continues to specifically allow a woman to recover for wrongful death of a child “whether or not the unborn child was viable at the time the abortion was performed or was born alive.”

Alabama’s Republican officials, including Gov. Kay Ivey and Attorney General Steve Marshall, have voiced strong opposition to abortion and have spoken regularly about the state’s interest in considering an embryo a “human life” beginning at “the inception of the pregnancy.”

Attorneys for the plaintiff couples allege that on December 20, 2020, a patient at the Mobile Infirmary hospital wandered the hospital’s facilities and came upon the fertility clinic. They say that the embryology laboratory, in which cryopreserved human embryos were stored was negligently left unlocked and unmonitored. The wandering patient, “at some point, removed Plaintiffs’ (and other patients’) embryonic children from the cryopreservation unit that was sustaining their lives,” detailed the complaint.

According to the allegations, when the patient picked up the embryos with his bare hands, he was burned by the embryos that were kept at subzero temperatures.  The patient then “drop[ped] the cryopreserved embryonic human beings on the floor where they began to slowly die,” according to the filing

“By the time the embryonic human beings were discovered by CRM staff, the embryos of six different patients, including two of the LePages’ embryonic children and two of the Fondes’ embryonic children, had died,” said the document.

Lawyers for the clinic argued that the plaintiffs’ argument was made to “confuse the issues and the public, casting this case as something it is not in an effort to tap into the political upheaval and pressure surrounding the abortion issue.” They further argued that an embryo is clearly not a “person” for the purpose of wrongful death lawsuits, principally because Alabama’s homicide statute already clarifies the that a “person” must be at least in utero.

Any embryos destroyed at the clinic would not constitute a legal “person,” because the state legislature intentionally left IVF embryos out of the definition of “person” in both the state’s wrongful death and homicide statutes which instead protect human beings “in utero.” Given that both homicide statutes and wrongful death statutes have a shared purpose, their definition of a “person” should match, argued attorneys for the clinic.

Moreover, the clinic argued that what the plaintiffs left out of their complaint indicates that their true motives are not about compensation for their loss, but about making a larger statement about abortion rights. In its brief to the state supreme court, the clinic pointed out that the plaintiffs did not include claims that would have been a more obvious fit for their lawsuit: those for breach of contract and bailment against the clinic.

While the issue of embryonic personhood might be considered unsettled, there is little question that the plaintiffs contracted with the clinic to safely store their embryos. Any loss of those embryos would clearly have given rise to claims against the clinic in contract and property law — but the couples chose not to raise any such claims.

The Alabama Medical Association intervened in the case and also argued that embryos are not persons within the meaning of the wrongful death statute. Attorneys for the association warned that a finding otherwise would have a detrimental impact on the practice of fertility medicine in Alabama, because fertility doctors would refuse to practice in a state with a dramatically increased scope of legal liability.

The case currently before the state’s highest court is not the first time Alabama lawmakers have considered the legal status of embryos. In 2019, before Roe v. Wade was overturned, Ivey signed a restrictive abortion bill into law that specifically excluded fertilized embryos in an IVF lab from the definition of a “life.”

Attorneys for the parties did not immediately respond to request for comment.

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