Lawyers, scholars weigh in on embryo ruling

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On Feb. 16, the Alabama Supreme Court issued a ruling that has had impact well beyond the state of Alabama, when the court ruled that embryos created through in-vitro fertilization (IVF) should be considered people. Minnesota legal scholars and attorneys weigh in on the ruling and what it means.

IVF is a type of assisted reproductive technology where a medical professionals help sperm fertilize an egg and then help the fertilize egg implant in the uterus. Plaintiffs were three couples who underwent IVF. During the treatment, they produced other embryos that were frozen and stored by the fertility clinic. They could then, if they chose to, use those embryos in a future cycle without having to undergo the surgery and hormonal treatments that are necessary for egg retrieval.

However, in December 2020, a patient entered the cryopreservation unit and opened one of the tanks where the plaintiffs’ embryos were stored. Given how cold the storage is, the patient was freeze-burned. He dropped the embryos, which were then destroyed.

The plaintiffs brought two lawsuits against the fertility clinic and hospital. One was brought under an Alabama statute called the Wrongful Death of a Minor Act. Although the case was dismissed at trial court, with the trial judge determining that embryos were not people or children under the statute, it was appealed. There, at the Supreme Court of Alabama, the court reversed and found that the Wrongful Death of a Minor Act did apply.

“It found no reason to distinguish between in utero and ‘extrauterine’ life by consulting dictionary definitions of ‘child’ and finding that the definitions include unborn as well as born young people (e.g., by saying that a pregnant woman is ‘with child’),” explained Professor Laura Hermer, of Mitchell Hamline School of Law. “If any ambiguity were to be found, the majority held that it must be decided in favor of protecting unborn life, as the state constitution protects ‘unborn life’ without qualification.”

The court concluded, “Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. 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.”

Notably, the chief justice used his religion to justify the ruling.

“Chief Justice Tom Parker invoked religious beliefs in his concurring opinion, which declared that: ‘Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,’” said Jill Hasday, McKnight University Professor and the Centennial Professor of Law at the University of Minnesota Law School.

“A concurring justice may have been the most honest about how he reached his outcome; his ruling that reads more like a sermon than a legal opinion, scripture quotes and all, and he expressed his personal policy preferences on the provision of IVF,” stated Jess Braverman, legal director at Gender Justice.

Hermer pondered, “This ruling is refreshing because it takes seriously the claim that ‘life begins at conception.’ If protected, rights-possessing life really does begin ‘at the moment of fertilization’ — if ‘each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness’ (LePage at 48, Chief Justice Parker concurring) — then why should it matter whether that life exists within or outside of a uterus?

“While politically unlikely, if there were a formidable national movement to protect unborn life from the moment of conception, then one might see conservative individuals and couples with fertility issues start to make common cause with the majority of Americans who support abortion rights and other reproductive freedoms.”

For now, the ruling has no effect on people in Minnesota who wish to undergo IVF treatment. “This decision from the Alabama Supreme Court interprets an Alabama statute and does not apply in other states,” said Hasday. “It demonstrates, however, that IVF services will not be able to continue in any jurisdiction that defines life as beginning at fertilization.”

“IVF is legal in Minnesota, and Alabama’s ruling does not extend beyond Alabama,” Braverman said. “If we want to keep it that way, then one thing we can and should do is pass an Equal Rights Amendment in this state that is inclusive of reproductive freedom including the freedom to make decisions about whether to become pregnant and whether to access infertility care.”

“Federal recognition of fetal personhood, or even widespread recognition among the 50 states would have devastating consequences for pregnant people and their loved ones,” Braverman added.

“State protections will become moot if Congress enacts legislation such as the Life at Conception Act,” said Hermer. “They might also become jeopardized if a subsequent federal administration pressures states to reform their laws.”

“Alabama has one of the highest rates of maternal mortality in the country, and according to a report by Pregnancy Justice, it leads the nation (to a staggering degree) in pregnancy-related criminalization,” said Braverman. “In the state of Alabama frozen embryos may now have greater protections than pregnant people.”

“Events in Alabama show some of the problems with allowing the government to grant personhood to unborn products of conception, rather than letting would-be parents take the lead,” added Hermer.