On February 16, 2024, the Alabama Supreme Court held 7-2 in LePage v. Center for Reproductive Medicine, P.C. that under the plain language of Alabama’s Wrongful Death of a Minor Act (“the Act”), parents of frozen embryos killed at an in vitro fertilization (IVF) clinic could proceed with a wrongful death lawsuit against the clinic for alleged negligence. The court further held that even if the Act’s language were ambiguous, the Alabama Constitution’s Sanctity of Unborn Life Amendment, ratified by voters and made law in 2018, would require the court to interpret the law in favor of protecting the unborn.
The cases arose when three couples, who had already become parents through IVF, sued the Center for Reproductive Medicine (“the clinic”), claiming that the clinic’s negligence in leaving the cryogenic nursery unlocked and vulnerable to an intruder resulted in the deaths of their frozen embryos, which the clinic conceded were human. The Mobile County trial judge dismissed the cases, reasoning that a frozen embryo is not a “child” under Alabama law. The plaintiffs then appealed to the Alabama Supreme Court.
In a 7-2 decision authored by Justice Jay Mitchell, the Alabama Supreme Court reversed the trial court and held that the “text of the Wrongful Death of a Minor Act applies to all children, without exception.” The court noted that when the Act was passed in 1872, “child” meant “the immediate progeny of parents,” and that the court would not create an exception in the statute for these IVF children just because they were located outside the womb. Doing so could precipitate a dangerous slippery slope where, for instance, children outside the womb but still in the birth canal could be killed without civil remedy. Moreover, the court alluded to its prior judicial decisions holding unborn children to be persons as additional evidence for its conclusion and asserted that any policy concerns raised by the case were for the legislature to resolve.
The court went on to say that even if the Act did not clearly protect IVF embryos, Alabama’s Sanctity of Unborn Life Amendment—which recognizes the “the rights of unborn children, including the right to life”—would have required the court to interpret the Act in favor of protecting them. Justice Mitchell wrote, “the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”
Chief Justice Tom Parker, who agreed with the majority opinion, wrote a separate opinion to expand on how the Sanctity of Unborn Life Amendment introduced a strong legal public policy to protect unborn life in Alabama, including IVF embryos. Chief Justice Parker wrote, “A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In this case, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb.” He noted that the People of Alabama’s decision to put the word “sanctity” in the constitutional amendment was deliberate and suggested that the amendment's protection of human life had theological motivations—that life is sacred because every human being is made in the image of God. Chief Justice Parker reasoned that the constitutional provision tilts the scales of the law in favor of protecting unborn life.”
In response to a dissenting justice’s claim that IVF would now end in Alabama, Chief Justice Parker pointed to medical regulations in other Western countries that better protect the lives of embryonic children while still allowing couples to become parents through IVF technology. Regardless, Chief Justice Parker concluded, the constitutional amendment protects the sanctity of IVF-created embryos like all other human life, and the court must follow that legal policy.
Justice Greg Shaw issued a concurring opinion, joined by Justice Sarah Stewart, responding to the dissent’s claim that the court was not following the common-law meaning of the word “child.” He countered that the plain meaning of “child” in the Act as well as Alabama’s statutory definition of person superseded any common law to the contrary.
Justice Brad Mendheim concurred in the result, but he worried that the main opinion mischaracterized the defense’s arguments and failed to treat the case’s fundamental questions with the nuance they deserved. Accordingly, Justice Mendheim warned that if the legislature did not “provide more leadership in this area of the law,” there “could be unfortunate consequences stemming from today’s decision that no one intends.”
Justice Will Sellers issued a brief dissent in which he claimed that the court had wrongly treated the case as being about much more than it was: “an attempt to design a method of obtaining punitive damages under Alabama’s Wrongful Death of a Minor Act.”
Justice Greg Cook issued a lengthy dissent. He argued that the main opinion violated the separation of powers and assumed the role of the legislature by employing faulty textual analysis to update the law. In his view, the original public meaning of the Wrongful Death Act could not have included frozen embryos, given that the common law did not “allow a claim for the death of an unborn infant” for over 100 years after its passage. Moreover, he argued, the main opinion overlooked an important qualifier in its cited dictionary definition for a child: that the term only “applied to infants from their birth.” Justice Cook further argued that the court was wrong when it interpreted the Sanctity of Unborn Life Amendment to provide a “rule of construction” for resolving alleged ambiguities in statutes. And finally, he worried that the court’s decision would spell an end to the dreams of “many Alabama citizens praying to be parents.”
In the immediate aftermath the court’s decision, Alabama IVF clinics ceased operations. However, on March 6, Alabama Governor Kay Ivey signed SB159 into law. The bill provides broad criminal and civil immunity to IVF clinics in the state, so much so that some clinics have since resumed operations. Meanwhile, the Center for Reproductive Medicine filed an application to the Alabama Supreme Court for the rehearing of their case.
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