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In IVF Case, Alabama Supreme Court Protects Life from Conception

In a victory for life, the court held that unborn children created through in vitro fertilization are children and therefore protected under Alabama law.
Denise Burke
Written by
A woman looks down at a pregnancy test

Are embryos that have been created using in vitro fertilization (IVF) children worthy of protection under the law? Does this also include embryos that remain cryogenically frozen? What legal recourse do parents have when their stored embryos are negligently destroyed?

Such questions were raised in an Alabama case called LePage v. Center for Reproductive Medicine.

In the case, three couples, who had already become parents through IVF, sued an IVF clinic because the clinic was left unlocked and vulnerable to an intruder, tragically resulting in the deaths of their unborn children. The clinic claimed that the frozen embryos were not children because they were not yet placed in a womb.

In a victory for life and the rights of parents, the Alabama Supreme Court has held that all unborn children created through assisted reproductive technologies like IVF are children and therefore protected under Alabama’s wrongful death statute.

But how did this case come about? And what implications does it have for the protection of life?

What is the background of this lawsuit?

From 2013 to 2016, three couples and hopeful parents went to a fertility clinic to obtain IVF treatments, leading to the creation of several embryos. Some of the embryos were implanted in their mothers’ uteruses and resulted in the births of healthy babies. Other embryos were placed in the clinic’s cryogenic nursery, meant to freeze the embryos at a certain point of development by keeping them at very low temperatures. This nursery also happened to be at a local hospital, and the room was supposed to be secured and monitored at all times.

In 2020, however, a patient at the hospital wandered into the clinic through an unsecured doorway. The patient removed several embryos, but the subzero temperatures of the embryos burned the patient’s hands, leading the patient to drop the embryos on the floor, resulting in their deaths.

In response, the parents sued, asserting that Alabama’s Wrongful Death of a Minor Act applied to their unborn children created through IVF. The act allows parents to recover punitive damages for their child’s death when it is caused by “the wrongful act, omission, or negligence of any person.”

The contested issue in the case was very narrow. Both parties in the case agreed that an unborn child is a “genetically unique human being whose life begins at fertilization and ends at death” and “usually qualifies as a ‘human life,’ ‘human being,’ or ‘person.’” But the parties disagreed about whether Alabama’s law applies to unborn children who are not in utero. In other words, the clinic argued that an embryonic child only counted as a child if he or she was located in a womb, but not if he or she was “stored” outside the womb.

The Alabama Supreme Court recognized that the text of Alabama’s Wrongful Death of a Minor Act doesn’t make exceptions. As the ruling stated, “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.”

To be clear, the ruling doesn’t outlaw IVF or other fertility treatments. It merely ensures that all unborn life, whether it is located in a womb or not, is treated with the dignity it deserves.

Protecting all life from conception

Cases like this one demonstrate that being pro-life entails more than just protecting unborn children from abortion. If we truly believe that life begins at conception, then this should influence how we think about assisted reproductive technologies like IVF.

If life begins at conception, where sperm and egg join to form an embryo, then each life created by IVF should be treated according to its intrinsic worth and dignity as a child made in the image of God. This holds true regardless of whether the child is eventually placed in a womb or not.

Unfortunately, some IVF clinics do not honor this principle. Because fertility (even when achieved through IVF) involves an aspect of chance, many IVF clinics will collect multiple eggs and attempt to fertilize them in batches, increasing the success rate of fertilization and thus lowering the overall cost.

But a side effect of this process is that it also creates extra embryos (unborn children), most of whom are frozen or discarded. One U.K. study found that of over 900,000 embryos created through IVF, 22.4 percent were transferred to a mother’s womb, 23.6 percent were frozen, and the remaining 54 percent were unaccounted for, likely discarded.

While IVF raises other ethical concerns, all human life from the moment of conception should be protected.

No matter the circumstances, all human life is valuable from conception to natural death. We should seek to foster a culture of life that recognizes that all unborn life, whether created through IVF or natural reproduction, is precious and worthy of protection.

Thankfully, the Alabama Supreme Court has recognized this fundamental truth.

Denise Burke
Denise Burke
Senior Counsel
Denise Burke serves as senior counsel with Alliance Defending Freedom, where she is a member of the Center for Public Policy.