Critics slam Alabama court ruling that frozen embryos are ‘children’

An embryologist examines a dish with human embryos under a microscope – Copyright AFP EVARISTO SA

An Alabama Supreme Court ruling that frozen embryos outside the womb are “children” has drawn criticism from the White House and the top US infertility association, which called the decision a “terrifying development.”

“All across the country, women are being forced to grapple with the devastating consequences of action by Republican elected officials -– from undermining access to reproductive care and emergency care to threatening access to contraception,” White House spokeswoman Karine Jean-Pierre said Tuesday.

Resolve: The National Infertility Association said the Alabama ruling could have “devastating consequences” for fertility clinics in the southern state that offer in-vitro fertilization (IVF).

“Alabama’s Supreme Court ruling is a terrifying development for the 1 in 6 people impacted by infertility who need in-vitro fertilization to build their families,” Resolve said in a statement.

“This new legal framework may make it impossible to offer services like #IVF, a standard medical treatment for infertility,” Resolve said.

The Alabama high court’s ruling stems from a lawsuit filed against a fertility clinic under the state’s 1872 Wrongful Death of a Minor Act.

The suit was filed by three couples whose frozen embryos were destroyed by a patient who “managed to wander into” a cryogenic nursery where they were stored and accidentally dropped several of them on the floor.

A lower court ruled the embryos could not be defined as a “person” or “child” and dismissed the wrongful-death claim.

But the Alabama Supreme Court, in a 7-2 ruling Friday, disagreed, saying “the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.”

“It applies to all children, born and unborn,” Justice Jay Mitchell wrote in an opinion sprinkled with quotes from the Bible.

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred,” Mitchell said in a reference to the state’s near-total ban of abortion.

“We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness,” Mitchell said.

“It is as if the people of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you, Before you were born I sanctified you,’” he wrote.

– ‘Great concern’ –

Dana Sussman, deputy executive director of Pregnancy Justice, described the Alabama ruling as a “natural extension of the march toward fetal personhood.”

“This is a cause of great concern for anyone that cares about people’s reproductive rights and abortion care,” Sussman said.

Alabama is one of some two dozen states that banned or restricted abortion access following the US Supreme Court’s 2022 ruling overturning the constitutional right to the procedure enshrined in Roe v Wade.

Jean-Pierre said the Alabama ruling was “exactly the type of chaos that we expected when the Supreme Court overturned Roe v Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”

The Medical Association of the State of Alabama warned in a brief to the court of the “potential detrimental impact on IVF treatment in Alabama” of a ruling that frozen embryos outside the womb were children.

“The increased exposure to wrongful death liability as advocated by the Appellants would –- at best –- substantially increase the costs associated with IVF,” it said.

“More ominously, the increased risk of legal exposure might result in Alabama’s fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine.”