How to shoot yourself in the foot: Alabama, rights of the Embryo

Bronwyn Rideout - 4 March 2024

In December 2020, a patient at the Mobile Infirmary Medical Centre in Alabama accessed or wandered into the hospital’s fertility clinic through an unsecured door. Said patient then also accessed the cryogenic nursery, and removed several frozen embryos from containment.

Frozen embryos and sperm are stored like in containers like this with liquid nitrogen

Bad idea for the patient (one report refers to them as she), as their hand was burnt by the subzero temperatures. Tragic outcome for the parents, as the patient dropped the container, destroying the embryos.

As things tend to go in the US, three couples tried to sue for wrongful death of a minor. The Le Pages and Fondes also pursued claims of negligence, while the third couple, the Aysennes, had claims for negligence, wantonness, and breach of contract. All three sought compensatory damages. The couples’ claims were initially rejected by the trial court, on the grounds that in vitro embryos did not fit the definition of a person or child. Further, the claims were barred by Alabama’s own prohibition on receiving compensatory damages for the emotional loss of human life, and the limits of what is called the zone of danger, which limits compensation for emotional damage only to those plaintiffs who sustained physical injury. Legislation on wrongful death damages is a piece of Alabama law that is exclusive to Alabama. In the 1877 case of Savannah & Memphis Railroad Co. v. Shearer, the Alabama Supreme court determined that their role was to punish criminals and the like, not to mete out compensation. To be precise, rather than awarding actual damages for one’s loss, Alabama only awards punitive damages which are intended to punish the wrongdoer and serve as a deterrent. In the event of a wrongful death of a minor under the age of 19, parents have six months to file a lawsuit.

In their reversal of the trial court decision, the Supreme Court of Alabama made it clear that all members of the court agree that the life of an unborn child begins at fertilization, and qualifies as life regardless of viability. The issue before the court was determining how to make that work when the embryo was extrauterine; the slippery slope had been made greasy back in 2017, in the case of Stinnett v. Kennedy, in which the SC reversed a different trial course decision to reject a woman’s claims that a doctor was responsible for the wrongful death of a 5-week old fetus. The plaintiffs from the 2020 incident had also argued that excluding extrauterine children from the wrongful death of a minor legislation would leave parents without recourse when children are killed in a partial-birth posture, where the child has left the uterus but not been fully delivered from the birth canal.

IVF is an expensive and invasive process, in which the much-wanted baby may never come to be. I have empathy for the families in that regard, and certainly agree that the hospital had breached its contract when it failed in its responsibility to keep the facility secure and free from unauthorised entry. It is also, as many have pointed out over the past couple of weeks, a process in which many eggs and embryos are harvested in a race to beat the odds; many of those eggs, sperm, and embryos will not be viable, and those that are stored could go unused. It appears the defendant in this instance is the institution, rather than an individual doctor as in Stinnett v. Kennedy, which is a whole different kettle of fish in meting out punishment and blame. As in Stinnett v Kennedy, you can go after a doctor and their reputation; a hospital is harder to budge.

I tried to see if there was legal precedent set anywhere with regards to fetal abduction, in which an unborn child is removed and kidnapped straight from the womb. There are numerous incidents of this across the US. Surprisingly, often the babies survive but the mother is murdered, which makes it a clear case of murder, in which a majority of perpetrators are sentenced to life in prison - which is what happened in Alabama in 1996. One case in Colorado has a mother who survived the attack, but her 7 month fetus did not. Because the mother survived, and the fetus would not have been viable, no homicide charges were laid - but the perpetrator was still sentenced to 100 years imprisonment.

One of the more stunning aspects in the Alabama Supreme Court decision was the following:

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

Alabama is a state that still has a death penalty, and will allow a judge to impose a sentence when the jury isn’t unanimous. Wrath of God indeed. The court’s chief justice, Tom Parker, has been the focus of particular disdain and ridicule in some corners of the American press junket. His concurring opinion quoted the Book of Genesis, Thomas Aquinas, and John Calvin. Described as unreticent with regards to his Christianity, there are concerns that his alignment is closer to Christian extremism, specifically the Seven Mountain Mandate.

But, back to Alabama shooting itself in the foot.

The judgment went viral in the worst way around February 22nd and 23rd. While there were doctors who were unphased by the ruling, and confident that any confusion would be cleared up, multiple fertility clinics still suspended services due to the potential legal repercussions of the decision. Chiefly, the risk of criminal prosecution that could be faced by both doctors and potential parents. With the repeal of Roe V. Wade, Alabama began enforcing a total abortion ban from June 24, 2022. This means that abortion at all stages of pregnancy is prohibited. There are no exceptions for rape or incest, and anyone who helps a woman leave the state to procure an abortion will be prosecuted. Given that disposal of unviable, extrauterine embryos is a daily occurrence in fertility medicine, you can see why many professionals would want a firm clarification before they start moving their practices to another state.

While many pro-life groups declared a victory, it quickly felt a bit pyrrhic. While the state stumbled around trying to respond to the outcry that, ironically, arose from families now prevented from creating life, holes were being poked and hypothetical questions tossed around that exposed how poorly thought-out this ruling was. You certainly had some snarky comments about the hypocrisy of pro-lifers using IVF, but many stuck to practical thinking like: “What happens when an Alabama taxpayer claims the $300 dependent exemption for multiple cryogenically frozen embryos? When does a human start to age? If a seven-year-old embryo is successfully implanted, is the ensuing child able to vote on his 11th birthday?” One clinic in Alabama was set to discard batches of frozen embryos when the ruling was made. Those batches were abandoned embryos from as far back as 16 years ago - will the attorney general now be tasked with chasing down all these deadbeat parents?

The ruling in Alabama has implications for other, similar lawsuits across the US. Several families attending the same fertility clinic in Norfolk, Virginia inexplicably lost their embryos. It was soon discovered that the culprit was the solution manufactured by CooperSurgical, which facilitated embryonic growth, but in this case 1,000 bottles of culture media were missing magnesium, a key nutrient. The solution was recalled in December 2023, and CooperSurgical paid out to a couple in Virginia. As of February 15th, there were 8 families who filed a lawsuit in the US, claiming a loss of a total of more than 100 embryos. The product is used worldwide and across the US, including in Alabama. It is unknown how many bottles of the solution were used before the recall; more judgements like this may be forthcoming in Alabama.

By March 1st, both the House and the Senate of Alabama pulled together and passed a couple of bills which protected IVF, but it still needs to go to the legislature for vote on March 6th. State Senators passed a bill that provided immunity for death or damage to an individual or entity providing goods and services in relation to IVF with no action, suit, or criminal prosecution able to be brought. The House passed an identical bill. Still, lawmakers from both parties argued that the immunity given to professionals left consumers without recourse, and promises were made to iron out the kinks. Whether these new bills will impact the Supreme Court ruling will likely become clear soon after.