2024
IVF and the Original Meaning of "Minor Child" at the Alabama Supreme Court

Lepage v. Center for Reproductive Medicine was decided by the Alabama Supreme Court on February 16, 2024.[1] It is the first court decision in the U.S. to rule that frozen, extrauterine embryos are considered children under a wrongful death statute.[2] Justice Jay Mitchell wrote for the 7-2 majority.[3] Several justices provided concurring opinions, and Justice Greg Cook provided a lengthy dissent.[4] The Lepage decision created a sense of urgency in state legislatures to better regulate embryos created by in vitro fertilization (“IVF”) in a manner that protects parents and the facilities alike.
The plaintiffs are three sets of parents who underwent IVF treatments resulting in the creation of embryos that were stored at the Center for Reproductive Medicine’s (“the Center”) cryogenic facility in Mobile, AL.[5] The facility was housed in the same building as the local hospital, the Mobile Infirmary Medical Center.[6] In December 2020, a patient at the Infirmary managed to gain access to the storage facility through an unsecured doorway. The patient removed the embryos from storage, but the freezing temperatures at which the embryos were stored burned the patient’s hands. The patient dropped the embryos on the floor, which destroyed them.[7]
The plaintiffs brought claims against the Center in the Mobile Circuit Court under Alabama’s Wrongful Death of a Minor Act (“the Act”)[8] — a statute that was originally passed in 1872 and remained “substantively…unchanged.”[9] Alternatively, the plaintiffs plead common law wantonness and negligence, should the court find that the definition of “minor child” did not include extrauterine embryos under the Act.[10] The trial court dismissed plaintiffs’ claims, finding that the Act’s definition of “person” or “child” did not encompass frozen, in vitro embryos and thus did not give rise to a wrongful death claim.[11] The common law wantonness and negligence claims were also dismissed.[12]
The Alabama Supreme Court reviewed the trial court’s dismissal of plaintiffs’ claims to consider whether the Act, which allows parents to seek punitive damages when a person’s conduct causes the death of a “minor child,” allows for recovery when an unborn child is not in utero at the time of death.[13]
The court’s majority, led by Justice Jay Mitchell, looked at its prior decisions to support its holding that the definition of “minor child” as used in the Act includes an unborn child, regardless of its stage of development and including extrauterine, frozen embryos.[14] Furthermore, the Court considered dictionary definitions from 1872, the year the Act became law, to conclude that the legislature contemplated children in utero to be included in the definition of “minor child.”[15] The majority also wrote that the “Sanctity of Unborn Life” constitutional amendment adopted by Alabama voters in 2018 instructs the court to resolve any ambiguity in the meaning of “minor child” in favor of including unborn, extrauterine children.[16] The court also dismissed the defendants’ argument that the classes of people protected by Alabama’s criminal law statutes must match those protected by civil law statutes.[17] Finally, the majority addressed the defendants’ argument that including extrauterine children in the definition of “minor child” will increase the cost of IVF in Alabama and likely end the practice altogether in the state by noting that it is up to the legislature to address these concerns. While acknowledging the gravity of the defendants’ concerns, the court nevertheless declined to “craft a new limitation based on our own view of what is or is not wise public policy.”[18]
The court’s ruling rendered the alternatively plead claims of wantonness and negligence moot.[19]
The majority opinion itself is a mere nine pages; the remaining 35 pages of text consist of concurrences and a dissent. Chief Justice Tom Parker wrote a lengthy concurring opinion drawing on dictionary definitions, Blackstone’s Commentaries on the Laws of England, the King James Bible, and writings from philosophers from the Christian religious tradition to explore the meaning of the term “sanctity of unborn life” as used in the 2018 amendment to the Alabama state constitution.[20]
Justice Greg Shaw, joined by Justice Sarah Stewart, wrote a concurring opinion. Countering the dissenting opinion’s argument, Justice Shaw while argued the meaning of the word “child” is well settled, includes unborn children, and there is no common law rule requiring a different result.[21]
Justice Brad Mendheim concurred in the result. He wrote to note that it has been the Alabama courts, rather than the legislature, who have “taken the lead”[22] in determining what protections are afforded by the Wrongful Death of a Minor Act. He implored the Alabama legislature to update statutes related to IVF, given the serious public policy and ethical concerns at stake regarding IVF.[23]
Justice Will Sellers dissented in part and wrote that the majority opinion expands the definition of “minor child” in a way the legislature never intended.[24]
Finally, Justice Cook’s dissent articulates his concerns that the majority opinion violates, rather than upholds, separation of powers principles.[25] Specifically, the court’s constitutional role is limited to interpreting the existing words in the statute; it’s the legislature’s prerogative to make necessary changes to the law to keep up with technology. Justice Cook disagreed with the court’s interpretation that the term “minor child” includes frozen embryos. The majority’s interpretation, in his view, “expand[ed] the meaning of the Wrongful Death Act beyond what it meant in 1872.” This expansion “short-circuit[s] the legislative process” and violate[d] the Alabama Constitution’s separation of powers clause”[26] He also warned of the consequences that could arise from the majority’s ruling, including the likelihood that no Alabama fertility clinic would offer IVF treatments or embryo storage in the future, or that the treatments would be cost prohibitive and deny Alabamans the opportunity to become parents.[27]
Three weeks after the decision, the Alabama legislature passed, and Governor Kay Ivey signed into law a bill to give civil and criminal immunity to IVF health care workers. The new law does not speak to “whether an embryo in cold storage is legally a child.”[28]
[1] LePage v. Center for Reproductive Medicine, P.C., 2024 WL 656591, (Ala. Feb. 16, 2024).
[2] Id. at 26 (Cook, J., dissenting).
[3] Id. at 1.
[4] Id. at 9 (Parker, C.J., concurring specially), 16 (Shaw, J., concurring specially), 17 (Mendheim, J., concurring in result), 23 (Sellers, J., concurring in the result in part and dissenting in part), 24 (Cook, J., dissenting).
[5] Id. at 1.
[6] Id.
[7] Id.
[8] Id. at 2.
[9] Id. at 20 n.27 (Mendheim, J., concurring in result).
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 3.
[14] Id. at 4 (citing Mack v. Carmack, 79 So. 3d 597 (Ala. 2011)).
[15] Id. at 6.
[16] Id.
[17] Id. at 7.
[18] Id. at 8.
[19] Id.
[20] Id. at 10-13 (Parker, C.J., concurring specially).
[21] Id. at 16 (Shaw, J., concurring specially).
[22] Id. at 18 (Mendheim, J., concurring specially).
[23] Id. at 22.
[24] Id. at 23 (Sellers, J., concurring in the result in part and dissenting in part).
[25] Id. at 26.
[26] Id. at 25-26.
[27] Id. at 41.
[28] Talal Ansari & Joseph De Avila, Alabama Shields IVF Providers With New Law, Wall Street Journal, Mar. 6, 2024, at https://www.wsj.com/us-news/alabama-shields-ivf-providers-with-new-law-53d54d16.
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