Alabama Supreme Court rules that frozen embryos can be considered children


The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a decision that, according to critics, could have profound implications for fertility treatments.

The ruling came in the context of two wrongful death lawsuits filed by three couples whose frozen embryos were destroyed in an accident at a fertility clinic. The judges, citing an anti-abortion provision in the Alabama Constitution, ruled that a state law from 1872 allowing parents to sue for the death of a minor child "applies to all unborn children, regardless of their location."
"The unborn children are 'children'... with no exceptions based on the stage of development, physical location, or any other complementary feature," wrote Judge Jay Mitchell in Friday's majority opinion from the entirely Republican-appointed court.

Mitchell stated that the court had previously ruled that fetuses dead while a woman is pregnant are covered by Alabama's Wrongful Death of a Minor Act, and nothing excludes "extrauterine children from the coverage of such law."

The judgment prompted a series of warnings about the potential repercussions on fertility treatments and embryo freezing, which courts had considered as property until now.

"This judgment declares that a fertilized egg, which is a cluster of cells, is now a person. It really calls into question the practice of in vitro fertilization," said Barbara Collura, CEO of the national infertility association Resolve, in an interview on Tuesday.

The group described the decision as "terrifying for the one in six people affected by infertility" who need in vitro fertilization.

It noted that the judgment raises a series of questions for providers and patients, including whether they can freeze future embryos created during fertility treatment or if patients can donate or destroy unused embryos.
The plaintiffs in the Alabama case had undergone in vitro fertilization treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births.

The couples had paid to keep others frozen in storage at the Mobile Infirmary Medical Center. In 2020, a patient entered the area and removed several embryos, dropping them to the ground and "killing" them, according to the ruling.

The judges ruled that the wrongful death lawsuits filed by the couples could proceed.