The Alabama Supreme Court has ruled that frozen embryos are children. What does this mean? And how might the ruling reverberate as the US grapples with reproductive rights in a post-Roe world? In this explainer, we will explore these issues and their possible implications.

As succinctly as possible, what was this case about?

LePage v. Mobile Infirmary Clinic, Inc. centered on three couples who underwent fertility treatments and subsequently lost several healthy embryos that had been preserved in their clinic. The court considered whether Alabama’s Wrongful Death of a Minor Act applies to extrauterine embryos.

What is IVF?

The plaintiffs in LePage v. Mobile Infirmary Clinic, Inc. produced embryos through in vitro fertilization (IVF), a course of treatments where fertility specialists inseminate eggs with sperm outside of the body and subsequently implant an embryo into the uterus for gestation.

Demand for IVF has surged worldwide, due in large part to societal and demographic trends ranging from career and educational opportunities prompting many women to wait longer to begin reproducing, to the increased availability and variety of contraceptives, according to a 2022 report by the US National Center for Biotechnology Information.

The report stated that worldwide, some 10 percent of couples face infertility struggles. It noted that in some European countries where IVF is affordable and/or covered by insurance, as many as 5 percent of newborns are conceived via the procedure. That figure, at the time the report was published, was about 1.9 percent across the US, where IVF treatments can cost tens of thousands of dollars and where many states don’t require insurance providers to cover infertility treatments.

Notably, IVF treatments can produce unpredictable quantities of embryos, leaving would-be parents with a range of options, such as implanting all embryos, paying for the cryogenic preservation of embryos for possible future use, and disposing of the embryos.

What happened to the LePage plaintiffs?

As mentioned above, the LePage plaintiffs include three sets of parents, all of whom conceived via IVF, and all of whom were left with additional embryos that they opted to preserve at the Center for Reproductive Medicine’s fertility clinic for possible future use.

In 2020, an individual gained access to the fertility clinic through an unsecured door, removed several embryos from their cryogenic chamber, and then dropped them on the floor, destroying them.

The plaintiffs sued the fertility clinic under Alabama’s Wrongful Death of a Minor Act based on their argument that embryos are, for legal purposes, children. Proceedings in a lower trial court resulted in a decision that the Act was inapplicable, reasoning: “The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child.'”

Their combined appeals paved the way for this month’s state Supreme Court decision.

How did the court rule and why?

Alabama’s Supreme Court summarized its ruling in the following terms:

The central question … is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.

This conclusion was based on several findings, including:

1. The Act “applies to all children, without exception.” In addition to reviewing state case law, the court pointed to the 1864 edition of Webster’s dictionary, which was in circulation at the time of the law’s 1872 passage, which defined “child” as “the immediate progeny of parents.” It also argued that “as far back as the 18^th century, the unborn were widely recognized as living persons with rights and interests,” citing Dobbs v. Jackson Women’s Health Org., the 2022 US Supreme Court case that overturned Roe v. Wade.
2. There is no legal precedent to “compel the creation of an unwritten exception for extrauterine children.” The defendants, which included the fertility clinic, had argued that there must be congruity between the definition of a person under state criminal and civil law, and that state homicide laws don’t encompass extrauterine embryos as victims, and thus the Act cannot be applied.  The court determined that even if this premise were true — “a question we have no occasion to reach” — it would not follow that the responsible party would be immune to civil liability.
3. “The defendants’ public-policy concerns cannot override statutory text.” The defendants had also argued that finding extrauterine embryos were children for purposes of the Act would have negative public policy impacts. The court held that public policy fell into the realm of the legislature, not the judiciary. “It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy,” the decision read.

What has the response to the ruling been like so far?

The ruling had an immediate chilling effect on IVF offerings in the state, with at least two of the state’s eight IVF clinics having paused certain IVF operations, according to media reports.

In addition, public figures and advocacy groups have been quick to respond.

The Alabama division of the ACLU slammed the court for “overstepping,” and decried the decision for its “terrifying implications” in a statement:

The Alabama Supreme Court has grossly overstepped its role by classifying frozen embryos, single-celled fertilized eggs, as children. Justices have crossed a critical boundary to assign personhood to something created in a lab that exists outside of a human body. This ruling has terrifying implications for people in Alabama who are planning to have children and for the fertility clinics that provide necessary services. This ruling endangers the fertility clinics in Alabama that provide IVF, those that have embryos stored, and the future of family planning in our state. Furthermore, this ruling, along with Alabama’s strict ban on abortions, means for many, it is the state, not the person, who can decide whether they can become pregnant.

Republican presidential hopeful Nikki Haley stirred controversy on Wednesday by stating in an NBC interview that she agreed with the definition, saying, “Embryos, to me, are babies … When you talk about an embryo, you are talking about, to me, that’s a life.”

Confronted with backlash, she said in a CNN interview later the same day that she did not agree with the ruling itself and that she had been responding to a question about the nature of an embryo.

I didn’t say that I agreed with the Alabama ruling. What the question that I was asked is, ‘Do I believe an embryo is a baby?’ … I do think that if you look in the definition, an embryo is considered an unborn baby. And so, yes, I believe from my stance that that is.