Alabama Supreme Court Rules Frozen Embryos Are Children

Feb 19, 2024

The Alabama Supreme Court ruled 7-2 that an embryo created through in-vitro fertilization (IVF) is a “minor child” and is no different under the law from an unborn child in the womb. Due to the 2018 Sanctity of Unborn Life Amendment in the state’s constitution, which declares it is “public policy” in Alabama to recognize “the sanctity of unborn life and the rights of unborn children,” the Court held that the law protects “‘the rights of the unborn child’ equally with the rights of born children.” 

Using this precedent, Liberty Counsel filed a supplemental authority today with the Florida Supreme Court regarding the proposed abortion amendment to Florida’s constitution. Currently, the Florida Constitution protects the rights of a “natural person.” During the oral argument on February 7, Florida Chief Justice Carlos Muñiz asked attorneys on both sides of the abortion issue if the ballot summary should apprise voters of how the proposed abortion amendment could impact the constitution if its definition of “natural person” also included the unborn.

Liberty Counsel is using Alabama’s ruling to argue that Florida’s Constitution, like Alabama’s, affirms “that an unborn child qualifies as a human life, a human being, and a person.” In response to Chief Justice Muñiz’s question, Florida’s deceptive amendment proposal as written misleads voters by not explaining how it will take away a protected right to life for the unborn.

In LePage v. Mobile Infirmary Clinic, Inc., the Supreme Court of Alabama faced the question of whether an unborn child being kept in a cryogenic nursery is entitled to status as a person under Alabama’s Wrongful Death of a Minor Act. (“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, 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.”).

The case involves a wrongful death lawsuit brought by three couples involving the death of their frozen embryos at an IVF clinic. The deaths were caused by a clinic patient who wandered into the cryogenic nursery and tampered with an unsecured freezer resulting in the embryos being dropped on the floor. The couples are suing Mobile Infirmary, Inc.’s Center for Reproductive Medicine for wrongful death, negligence, and wantonness seeking damages for mental anguish and emotional distress. 

In April 2022, the Mobile County Circuit Court dismissed the case before it could go to a discovery phase and summary judgment stating that a frozen embryo is not a “minor child” under Alabama’s Wrongful Death of a Minor Act. However, the ruling to reverse that decision by the state supreme court allows the wrongful death suit to move forward at the circuit court level. 

The Supreme Court of Alabama held that such unborn children were entitled to status as a person. “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.” (emphasis added). “[T]he relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.” (“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.”). 

Directly relevant to Florida Supreme Court Chief Justice Muñiz’s questions during the February 7 oral argument on the Florida abortion amendment, the Alabama Supreme Court noted that an unborn child qualifies as a human life, a human being, and a person. 

"All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a “human life,” “human being,” or “person,” as those words are used in ordinary conversation and in the text of Alabama’s wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child’s development, regardless of viability," stated the Alabama Supreme Court.

The Alabama Supreme Court wrote: “The ordinary meaning of ‘child’ includes children who have not yet been born.” 

According to Alabama Supreme Court Chief Justice Tom Parker, who wrote a separate concurrence, the state’s Sanctity of Unborn Life Amendment presents a public policy at strongly protects unborn life in the state. 

Justice Parker wrote, “A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb. Our state Constitution contains the following declaration of public policy: ‘This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” 

Chief Justice Parker also stated that the citizens of Alabama agreed with the deliberate use of the word “sanctity” in the constitutional amendment, to which he noted that scholars have attributed “theological connotations.” 

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God,” wrote Justice Parker. “Putting this all together, [the law] does much more than simply declare a moral value that the People of Alabama like. Instead, this constitutional provision tilts the scales of the law in favor of protecting unborn life.” 

Even in the dissenting opinion, Justice Gregory Cook stated the arguments to dismiss the wrongful death suit present a “catch-22” argument. 

Liberty Counsel Founder and Chairman Mat Staver said, “Every unborn life is a human being. Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location. This important ruling has far-reaching implications. Liberty Counsel is using this precedent to argue that Florida’s proposed deceptive and misleading abortion amendment violates Florida’s own laws that routinely recognize that an ‘unborn child’ has the legally protected rights of a person. Unborn life must be protected at every stage.”

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