Alabama Supreme Court Considering Whether Dropping Frozen Embryos On The Floor Of An IVF Clinic Is A ‘Wrongful Death’

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. 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

“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.”


The case hinges on the argument that the state’s wrongful death statute should apply to embryos that have not yet been implanted in a woman’s uterus. Attorneys representing the Medical Association of the State of Alabama wrote that applying the wrongful death statute to in vitro embryos, which had been created in a lab but not yet implanted, would drive up the costs of fertility treatment and discourage doctors from practicing in Alabama.

Attorneys for the families, James and Emily LePage, William Tripp Fonde and Caroline Fonde and Felicia Burdick-Aysenne and Scott Aysenne, said Alabama law recognizes human life as beginning at the moment of conception, when sperm fertilizes an egg.

The only difference between embryos implanted inside the body, which would be covered under Alabama’s wrongful death statute, and those stored in a cryogenic freezer is the location, they argued. Alabama voters approved a constitutional amendment in 2018 that protects the rights of unborn children.


The Moment of Conception?

“This is a new issue,” Chief Justice Tom Parker said. “We’re really a first in the country to deal with this it looks like. There was a lot of back and forth, more than normal, because even the justices need to get a grip on this issue.”

Mobile Infirmary representatives said an embryo must be in a uterus to be considered a human life.

Tommy Kenne with the Alabama Medical Association argued embryos are not humans and do not have human rights. “They are human embryos, but they are not human beings,” Kenne said. “They’re not persons. They don’t have limbs they don’t have eyes, ears or noses.” 


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