How the reversal of Roe v. Wade led to the Alabama Supreme Court ruling that frozen embryos are children

By Jacqueline Howard, CNN

(CNN) — An Alabama Supreme Court ruling that decided frozen embryos are children, and those who destroy them can be held liable for wrongful death, shows a new way in which the overturning of Roe v. Wade can affect how embryos are viewed under certain state laws.

The ruling, released this month, stems from two lawsuits in which three sets of parents who underwent in-vitro fertilization (IVF) allege that several frozen embryos at a Mobile hospital were dropped on the floor and destroyed in December 2020. The parents sued for damages. A trial court originally dismissed their claims, finding that the embryos were not people, but the state Supreme Court ruling, reversing that decision, said that the destruction of the embryos falls under the state’s Wrongful Death of a Minor law.

That decision is the first known case in which a US court has ruled that frozen embryos are human beings. But several separate actions have led up to that decision, creating an unprecedented foundation for the ruling to take place – with the most significant being the US Supreme Court’s reversal of Roe v. Wade in 2022.

Events leading up to the Alabama Supreme Court decision can be traced to 2006, when the criminal statute for homicide in the state was changed to include in utero. That legislation defines a “person,” when referring to the victim of a criminal homicide or assault, as “a human being, including an unborn child in utero at any stage of development, regardless of viability.”

In 2011, a court decision in Alabama in the case of Mack v. Carmack – in which the plaintiff had a miscarriage after a car accident – found that the Wrongful Death Act could be applied to the death of the fetus in the miscarriage. Years later, in 2018, a key constitutional amendment was passed in Alabama declaring that “it is the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.”

Although the amendment was passed to restrict abortions, the Alabama Supreme Court pointed to that 2018 measure to recognize embryos as persons under state law, saying the amendment allowed for a more expansive view of the law at issue in the case.

“When it comes to the Wrongful Death of a Minor Act, that means coming down on the side of including, rather than excluding, children who have not yet been born,” the ruling reads.

Also in this recent case, “lawyers have applied an 1872 law that allows couples to sue for wrongful death of a minor child. The Alabama Supreme Court has now stated that embryos outside of the uterus are the legal equivalent of a child, and anything that can happen to an embryo can be considered the wrongful death of a minor, with legal consequences,” Dr. Shaun Williams, a partner in reproductive endocrinology at the Connecticut-based clinic Illume Fertility, wrote in an email. He was not involved in the Alabama case but has been tracking it closely as a fertility specialist.

“It is one more step that the State of Alabama has taken to limit abortion access, even though the goal of fertility treatments is to build a family and to have children, IVF clinics are the only location where embryos actually exist outside the human body,” he said. “The most concerning aspect about this ruling is that it will make it much more difficult for some couples in Alabama to overcome the devastating emotional and social consequences of infertility. Traveling to another state is often not feasible for fertility treatments which often involve multiple visits to a clinic during each treatment month.”

An additional concern, Williams said, is the possibility that other states might adopt similar legal precedents, since the fall of Roe means there is no longer a federal right to abortion access, and each state can make its own laws around abortion.

Post-Roe, states can decide when life begins, and anti-abortion bills may determine what this means for embryos used for infertility treatments such as in vitro fertilization.

IVF is a form of assisted reproductive technology in which eggs are fertilized by sperm cells in a lab and the resulting embryos get transferred into a person’s uterus in hopes of leading to pregnancy.

President Joe Biden said in a statement Thursday that the Alabama Supreme Court decision was a “direct result” of the overturning of Roe.

“Today, in 2024 in America, women are being turned away from emergency rooms and forced to travel hundreds of miles for health care, while doctors fear prosecution for providing an abortion. And now, a court in Alabama put access to some fertility treatments at risk for families who are desperately trying to get pregnant. The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable,” Biden said.

“Make no mistake: this is a direct result of the overturning of Roe v. Wade,” he said. “I know that folks are worried about what they’re seeing happening to women all across America. I am too. I hear about it everywhere I go. My message is: The Vice President and I are fighting for your rights. We’re fighting for the freedom of women, for families, and for doctors who care for these women. And we won’t stop until we restore the protections of Roe v. Wade in federal law for all women in every state.”

Due to these post-Roe concerns, a bipartisan effort is underway in the Alabama House and Senate to draft “clarifying” legislation that would “protect” in vitro fertilization treatments following the court’s ruling, state legislative sources told CNN.

Alabama state lawmakers Thursday introduced a state bill that “would provide that any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law.”

And in Congress, Democratic lawmakers introduced legislation last month aimed at protecting access to infertility treatments such as IVF. The Access to Family Building Act would make it a statutory right for patients to access assisted reproductive technology, continue treatments and retain authority over how sperm or egg cells are used during such treatments.

On a federal level, the Access to Family Building Act would supersede state laws when it comes to discarding a patient’s embryos during the IVF process or terminating a pregnancy when a patient is implanted with multiple embryos while using assisted reproductive technology. The bill was introduced in the House and Senate, and no significant actions have been taken on it.

“From the beginning, I’ve been warning that the fall of Roe v. Wade wasn’t just about abortion – and the recent Alabama Supreme Court ruling proves that,” Illinois Sen. Tammy Duckworth, who introduced the legislation with Pennsylvania Rep. Susan Wild, wrote in an email Thursday.

“With the Alabama court’s ruling, it’s as clear as ever that we must pass my Access to Family Building Act to establish a statutory right to access IVF and ART for all Americans,” she said. “We can’t allow women and their doctors to be criminalized just for wanting to have children – not in Alabama or any state in America.”

CNN’s Devan Cole contributed to this report.

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