NYT (“Alabama Rules Frozen Embryos Are Children, Raising Questions About Fertility Care“):
An Alabama Supreme Court’s ruling that frozen embryos in test tubes should be considered children has sent shock waves through the world of reproductive medicine, casting doubt over fertility care for would-be parents in the state and raising complex legal questions with implications extending far beyond Alabama.
[…]
The judges issued the ruling on Friday in appeals cases brought by couples whose embryos were destroyed in 2020, when a hospital patient removed frozen embryos from tanks of liquid nitrogen in Mobile and dropped them on the floor.
Referencing antiabortion language in the state constitution, the judges’ majority opinion said that an 1872 statute allowing parents to sue over the wrongful death of a minor child applies to unborn children, with no exception for “extrauterine children.”
“Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker wrote in a concurring opinion, citing scripture.
I am, to say the least, not a fan of judges citing scripture as a basis for their rulings. Indeed, it would seem to violate the Establishment Clause of the First Amendment. It’s the kind of thing that continues to give my erstwhile home state a bad name. As a mutual friend of Steven Taylor and mine, a retired professor at my graduate alma mater, noted on Facebook yesterday, it’s “usually bad when Alabama makes the national news.”
That said, the reasoning of the main opinion doesn’t strike me as nutty. The embryos of the two plaintiff couples were destroyed through the neglect of the clinic.
a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero
temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.
It seems reasonable to me that the clinic is liable for damages from their negligence.
Each set of plaintiffs asserted claims under Alabama’s Wrongful Death of a Minor Act, § 6-5-391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes’ case) or negligence and wantonness (in the Aysennes’ case), for which they sought compensatory
damages, including damages for mental anguish and emotional distress. The plaintiffs specified, however, that their common-law claims were pleaded “in the alternative, and only [apply] should the Courts of this State or the United States Supreme Court ultimately rule that [an extrauterine embryo] is not a minor child, but is instead property.” In addition to those claims, the Aysennes brought breach-of-contract and bailment claims against the Center.
I have no opinion on the contract and bailment claims, having no familiarity with the contracts in question and only passing understanding of the applicable law. But the notion that fertilized embryos would be treated as human life in this particular circumstance doesn’t disturb me in the least. Even when Roe was in its fullest effect and abortion was legal through the end of the second trimester, we treated the unborn child as a human being in homicide cases and in civil suits where someone’s negligence or malfeasance caused the death of said child.
Regardless, the trial court dismissed the case without hearing it.
In each of its judgments, the trial court explained its view that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’” or “‘child,’” and it therefore held that their loss could not give rise to a wrongful-death claim.
The trial court also concluded that the plaintiffs’ negligence and wantonness claims could not proceed. Specifically, the court reasoned that, to the extent those claims sought recovery for the value of embryonic children, the claims were barred by Alabama’s longstanding prohibition on the recovery of compensatory damages for loss of human life. And to the extent the claims sought emotional-distress damages, the trial court said that they were barred by the traditional limits to Alabama’s “zone of
danger test,” which “limits recovery for emotional injury only to plaintiffs who sustained a physical injury … or were placed in immediate risk of physical harm ….”
I must confess to only passing familiarity with Alabama law on these matters but, as summarized, the trial court’s reasoning also doesn’t strike me as crazy. It does, however, strike me as unjust from an equity standpoint. The plaintiffs suffered real emotional damage because of the clinic’s negligence.
The Alabama Supreme Court’s analysis begins:
The parties to these cases have raised many difficult questions, including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to
such children, and the public-policy implications of treating extrauterine children as human beings. But the Court today need not address these questions because, as explained below, the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation. That language resolves the only issue on appeal with respect to the plaintiffs’ wrongful-death claims and renders moot their common-law negligence and wantonness claims.
As we’ll see later, most of the objections to the ruling are on the broader issues that the Alabama Supremes say are not at stake in the case. Instead, they rely on the interpretation of a longstanding (first enacted in 1872 but updated as recently as 2022) Alabama statute. Their analysis is lengthy and I won’t excerpt it here out of practicality. But, in short, the same Court held in 2011 that “an unborn child qualifies as a ‘minor child’ under the Act, regardless of that child’s viability or stage of development.” The defendants don’t challenge that assumption.
They then cite multiple dictionary definitions of “child” and “children” — a practice I abhor — demonstrating that including unborn children in the definition has been customary for generations, including when the Act was written. They also note that Blackstone’s Commentaries support such a view. All of this is cited as evidence that unborn children are children in a textualist view of the statute.
But, of course, neither Noah Webster nor William Blackstone opined on the status of embryos in a test tube, which is the question in this case. The majority opinion simply sidesteps that inconvenient fact by contending that the defendants (and, by extension, the trial court that dismissed the case on summary judgment) were asking for an “unwritten exception” to the existing law and precedents.
Still, as noted earlier, I don’t find the ruling crazy from a legal standpoint and am inclined to support it from an equity standpoint. The plaintiffs were in fact injured and it’s perfectly reasonable that they should be able to seek compensation for their damages.
The problem, of course, is from the potential implications of the ruling beyond the narrow context of parents who are harmed by the negligence of clinics.
Back to the NYT piece:
Infertility specialists and legal experts said the ruling had potentially profound effects, which should be of concern to every American who may need to access reproductive services like in vitro fertilization.
[…]
Reproductive medicine scientists also blasted the ruling, saying it was a “medically and scientifically unfounded decision.”
“The court held that a fertilized frozen egg in a fertility clinic freezer should be treated as the legal equivalent of an existent child or a fetus gestating in a womb,” said Dr. Paula Amato, the president of the American Society for Reproductive Medicine.
“Science and everyday common sense tell us they are not,” she said. Even in the natural world, she added, several eggs are often fertilized before one successfully implants in the uterus and results in a pregnancy.
Dr. Amato predicted that young doctors would stop going to Alabama to train or to practice medicine in the aftermath of the ruling, and that doctors would close fertility clinics in the state if operating them meant running the risk of being brought up on civil or criminal charges.
“Modern fertility care will be unavailable to the people of Alabama,” Dr. Amato predicted.
While this strikes me as hyperbolic, there are obvious—and absurd—consequences to a broader policy that treats frozen embryos as human beings. Indeed, the defendant clinic and others raised them in their filings:
[T]he defendants and their amicus devote large portions of their briefs to emphasizing undesirable public-policy outcomes that, they say, will arise if this Court does not create an exception to wrongful-death liability for extrauterine children. In particular, they assert that treating extrauterine children as “children” for purposes of wrongful-death liability will “substantially increase the cost of IVF in Alabama” and could make cryogenic preservation onerous. Medical Association of the State of Alabama amicus brief at 42; see also Appellees’ brief in appeal no. SC-2022-0515 at 36 (arguing that “costs and storage issues would be prohibitive”).
The Alabama Supremes simply punted on that:
While we appreciate the defendants’ concerns, these types of policyfocused arguments belong before the Legislature, not this Court. Judges are required to conform our rulings “to the expressions of the legislature, to the letter of the statute,” and to the Constitution, “without indulging a speculation, either upon the impolicy, or the hardship, of the law.” Priestman v. United States, 4 U.S. (4 Dall.) 28, 30 n.1 in the reporter’s synopsis (1800) (Chase, J., writing for the federal circuit court).
While true, it’s certainly unsatisfying as an outcome. While I tend to agree with the narrow outcome of the ruling, they’ve potentially opened a Pandora’s box of follow-on litigation. “Too bad, so sad” is a poor response to that.
It is noteworthy that this merely sends the case to trial. It’s possible (although I would say unlikely) that a jury will find that the clinic acted with reasonable care. It’s possible—and, indeed, quite likely—that a jury will find that the contracts the plaintiffs signed indemnify the clinic from liability. (One couple gave the clinic permission to destroy the embryos after five years. The other gave them permission to donate them after the same period.) It’s also possible that, even if the clinic is found liable, the damages will be relatively small.
But, again, this has opened Pandora’s Box. I would not be shocked if other states followed suit. And I don’t expect the US Supreme Court to offer any clarity.
