2024 Alabama Supreme Court Ruling on Embryos (PDF)

204 – Are Embryos People? Reflections on the Alabama Supreme Court Ruling, February 2024 In-vitro fertilisation (IVF) is a medical treatment where fertilisation takes place outside of the body. It is used by a wide range of people with fertility issues, and is increasingly common. Often multiple emb...

204 – Are Embryos People? Reflections on the Alabama Supreme Court Ruling, February 2024 In-vitro fertilisation (IVF) is a medical treatment where fertilisation takes place outside of the body. It is used by a wide range of people with fertility issues, and is increasingly common. Often multiple embryos are created for each person undergoing IVF treatment, though not all will be implanted into the birth parent. Thus, it is an almost inevitable consequence of IVF treatment that more embryos will be created than will develop into viable pregnancies. The embryos which are not implanted, are often cryogenically frozen, and stored, either to be used for future pregnancies, or eventually to be used in research. In February 2024, the Alabama Supreme Court ruled that frozen embryos, which had been stored for research, or future attempts to create viable pregnancies, held the same status as inutero foetuses and embryos, and living children. As the Court stated in its decision, such embryos are “extrauterine children”.1 This is the first time an American court has recognised frozen embryos as children. Previously, in cases where prospective parents had separated after having created and stored embryos for example, Courts had operated on the principle that the shared embryos were property, and often required consent from both parties if embryos were to be implanted and brought to term.2 The decision was reached in the Court’s hearing of two cases brought by couples, the embryos of whom had been destroyed in an accident at a fertility clinic in the state. 3 It was based in part on precedent derived from an 1872 State Law, The Wrongful Death of a Minor Act, which allows parents to sue for punitive damages the person(s) responsible for the death of their child. The Court also referenced Alabama’s “Brody Act”, which made it a crime to harm or kill an unborn baby. This law was enacted after a pregnant woman was murdered, also leading to the death of the eight and half month-old foetus she intended shortly to deliver via caesarean section.4 https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/343D203AB13D-463A-8176-C46E3AE4F695/docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D Alabama Supreme Court Decision 1 https://www.independent.co.uk/life-style/sofia-vergara-embryos-nick-loeb-court-case-permanent-injunctionb1811996.html 2 3 https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca 1 As a consequence of this decision, many fertility clinics in Alabama are significantly limiting their range of services. Some have (at least temporarily) halted all IVF provision, while others have stated that they would no longer discard any embryos, even if that was previously standard practice, due to fears that the destruction of “spare” embryos may lead to criminal prosecution. In response, the Alabama legislature passed legislation granting exemptions to this law for those providing IVF. Despite this, a grey area in the law persists, and while some clinics have resumed provision, the accessibility of IVF in Alabama remains uncertain. A bill has been introduced in the Alabama legislature to confirm that the word “child” should not refer to embryos in any State Law, but it has not yet progressed to further debate in the legislature.5 Implications Fertility treatment: People may refrain from seeking IVF treatment out of fear that the ruling may be used as grounds to prosecute them for neglecting frozen embryos in storage, and/or seize embryos and allocate them to other people. Abortion: In strengthening the narrative that embryos are people, entitled to the same protections as living humans, the Alabama Supreme Court adds weight to arguments against abortion and contraception. This may further restrict their accessibility, already limited by the US Supreme Court’s 2022 ruling in Dobbs v Jackson, which overturned the federal right to abortion, allowing individual states to enact increasingly restrictive laws. 6 Abortion is now illegal in Alabama, except in cases of medical emergency, or where there is a serious health risk to the unborn child's mother. In the latter case, two physicians’ verdicts are required.7 Research: Research using frozen embryos can help us understand the causes of miscarriage, improve maternal, foetal, and newborn health, and potentially lead to new medical technologies such as mitochondrial donation. Researchers working with embryos in Alabama may find that conducting their research puts them at risk of prosecution, potentially for 4 https://eu.gadsdentimes.com/story/news/2006/07/03/brody-bill-goes-into-effect/32274666007 5 https://legiscan.com/AL/text/HB225/2024 6 https://www.kcl.ac.uk/dobbs-v.-jackson-a-year-on Ala. Code § 26-23H-4: https://casetext.com/statute/code-of-alabama/title-26-infants-and-incompetents/ chapter-23h-the-alabama-human-life-protection-act/section-26-23h-4-abortion-prohibited-exception 7 2 “murder”, and may encourage some researchers to either leave Alabama, or cease their research efforts. Further Reading  https://www.hfea.gov.uk/treatments/explore-all-treatments/in-vitro-fertilisation-ivf/  https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a765360b2e8af13/cms/case/343D203A-B13D-463A-8176-C46E3AE4F695/ docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D - Alabama Supreme Court Decision  https://apnews.com/article/alabama-supreme-court-from-embryos161390f0758b04a7638e2ddea20df7ca  https://www.americanprogress.org/article/how-the-alabama-ivf-ruling-is-connectedto-upcoming-supreme-court-cases-on-abortion/  https://publichealth.jhu.edu/2024/the-alabama-supreme-courts-ruling-on-frozenembryos#:~:text=The%20Supreme%20Court%20disagreed%20and,the%20time %20they%20are%20killed.%E2%80%9D  https://www.bbc.com/future/article/20240226-what-is-an-embryo-global-medicaldefinition-of-personhood-ivf-ruling  https://www.aljazeera.com/news/2024/2/21/why-has-the-alabama-supreme-courtruled-that-embryos-are-children  https://eu.gadsdentimes.com/story/news/2006/07/03/brody-bill-goes-into-effect/ 32274666007/  https://theconversation.com/alabama-courts-ruling-that-embryos-are-children-opensup-a-host-of-other-legal-issues-including-parental-rights-224717  https://www.kcl.ac.uk/dobbs-v.-jackson-a-year-on  https://www.independent.co.uk/life-style/sofia-vergara-embryos-nick-loeb-court-casepermanent-injunction-b1811996.html 3