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In a controversial opinion that could end the practice of in vitro fertilization in the state, the Alabama Supreme Court on Friday declared that frozen embryos are “children” entitled to the same legal rights as other “unborn children.”
The opinion was issued in a case involving the accidental destruction of several embryos at a Mobile fertility clinic, The Center for Reproductive Medicine, when a wandering patient entered the area where they were stored and dropped several containers. Three couples whose embryos were destroyed sued the Center, but a circuit court judge threw out the lawsuit because the embryos were not covered under Alabama’s “Wrongful Death of a Minor Act.”
“The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person,’” the trial court wrote in dismissing the cases.
As such, there were no claims remaining – aside from a breach of contract – for the plaintiffs to make. The court couldn’t award damages for wrongful death and Alabama law prohibits the recovery of damages from a third-party who hasn’t suffered physical injury.
However, writing for the court’s majority, Justice Jay Mitchell reversed the lower court, opened up several new and creative avenues for future lawsuits and likely made IVF treatments in Alabama unaffordable. Writing in a concurring opinion, ALSC Chief Justice Tom Parker turned the opinion into a citation of Biblical scripture.
“When the People of Alabama adopted (the ‘sanctity of life’ provision of the state constitution), they did not use the term ‘inviolability,’ with its secular connotations, but rather they chose the term ‘sanctity,’ with all of its connotations,” Parker wrote. “This kind of acceptance is not foreign to our Constitution, which in its preamble ‘invok[es] the favor and guidance of Almighty God,’ … and which declares that ‘all men … are endowed [with life] by their Creator.’ The Alabama Constitution’s recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama.”
Parker then went on to cite two overtly Christian texts – “Theology Today” and “Manhattan Declaration: The Call of Christian Conscience” – to help define the phrase “sanctity of life” and argue that life begins at conception because, “all human beings bear God’s image from the moment of conception.”
From there, Parker went on to quote the Bible and another theological text that explained, in his words, “the significance of man’s creation in God’s image.”
Justice Greg Cook, the court’s lone dissenter, avoided the biblical arguments and instead focused on the laws as written, noting that nothing in the “wrongful death act” or Alabama law has defined an embryo as a “child.” Such a definition would be necessary to reach the court’s opinion, and it would need to be reached with legal arguments, not biblical ones.
Additionally, Cook wrote that the decision would have a chilling effect on the IVF process in Alabama.
“… there are other significant reasons to be concerned about the main opinion’s holding,” Cook wrote. “No court — anywhere in the country — has reached the conclusion the main opinion reaches. And, the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (“IVF”) in Alabama.”
