On February 16, 2024, the Alabama Supreme Court ruled that the word “child” is extended to frozen embryos, which are now considered “extrauterine children.”
The ruling addressed the claims of two separate plaintiffs, who both brought charges under Alabama’s Wrongful Death of a Minor Act against the Center for Reproductive Medicine for the death of their embryos.
The trial court concluded that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a “person” or “child,” and it, therefore, held that their loss could not give rise to a wrongful death claim.” The trial court then dismissed the case. The Alabama Supreme Court reversed the trial court’s decision and remanded it back to the lower court.
This decision opened up questions surrounding the status of in-vitro fertilization (IVF) in Alabama. Immediately following the February 16 decision, three of the seven IVF clinics in Alabama shut down.
Dr. Eve Feinberg, a reproductive endocrinologist and infertility specialist at Northwestern University, stated that 45% of all embryos created in laboratories die – “and the charge of wrongful death can now be applied. As a reproductive specialist, that idea is terrifying,” cautioned Feinberg.
On March 6, 2024, Governor Kay Ivey (R-AL) signed a new legislation into law that protects IVF doctors from legal liability as a result of the Alabama Supreme Court ruling. In a statement, Ivey called this law a “short-term” measure to help so that “couples in Alabama hoping and praying to be parents can grow their families through IVF.” This new law provides clarifications and protections surrounding IVF treatments, and two of the three IVF clinics that paused their services opened up after the new law was passed. However, the third clinic — the subject of the Alabama Supreme Court case — felt that this new law did not provide enough legal protection to reopen.
The Alabama ruling has not only raised concerns about the future of IVF but also about the impartiality of the Alabama Supreme Court’s justices. Justice Tom Parker’s (R-AL) concurring opinion, which included quotes from The Book of Genesis and the Ten Commandments, brought his involvement with the Christian Nationalist movement into a new light. Justice Parker seemingly supports the “Seven Mountains” theology, which is considered by some as Christian extremist beliefs. In an interview with Johnny Enlow, a pro-Trump, self-proclaimed “prophet” and QAnon conspiracy theorist, Parker stated: “God created government. And the fact that we have let it go into the possession of others, it's heartbreaking for those of us who understand… And that's why He is calling and equipping people to step back into these mountains right now.” Parker’s appeal to religion in this interview represents a departure from the Moral Code of Conduct adopted by the American Bar Association, which holds that judges should remain and promote the independence, integrity, and impartiality of the judicial system.
Matthew Taylor, a Senior Scholar and Protestant Scholar at the Institute for Islamic, Christian, and Jewish Studies in Baltimore, warns against the potential lack of separation between church and state among Supreme Court justices. Taylor said that if justices “think that their allegiance is to a higher power and their allegiance is to the Bible primarily before the Constitution… that should really raise questions about the separation of religion and state.” Justice Parker’s application of his Christian extremist beliefs to his decisions on the Alabama Supreme Court also suggests a larger trend of the legitimization of Christian nationalism in the U.S. legal system.
These questions about Christianity in the legal system are bigger than this Alabama case and tie back to the United States Supreme Court decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Abortion and IVF are connected under the general umbrella term of reproductive health. Reproductive health is defined by the World Health Organization as a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.”
The rhetoric surrounding anti-abortion activism can be connected to IVF through the idea of “fetal personhood,” or the belief that fetuses and, in the case of Alabama, embryos have legal rights to personhood. Even though embryos and fetuses are distinct from one another, the rhetoric surrounding them is similar. The Alabama decision to consider embryos as extrauterine children is very close to identifying a fetus as a child.
Seen from the reluctance of some IVF clinics to resume care, the fallout from the Alabama Supreme Court ruling is not yet resolved. In the case of the Center for Reproductive Medicine, some believe that the civil and criminal immunity for IVF providers does not provide enough legal protection. Feinberg said clinics may be able to store embryos out of state, but it would reduce the accessibility of the care.
Just as with the case of abortion restrictions, the extension of “fetal personhood” to frozen embryos has the potential to divide reproductive care across socioeconomic lines, disproportionately affecting communities subject to racial and economic injustice.