(CN) — With some of the strictest anti-abortion laws in the nation, Alabama is considered a staunchly pro-life state. But while recent legislation has extended protections to unborn children, fetuses and embryos in utero, no law has ever provided the same protection to embryos in vitro.
That was the essence of an appeal considered by the Alabama Supreme Court Tuesday, after a Mobile County judge dismissed a wrongful death case against a fertilization clinic that allowed a patient to destroy embryos that were stored in an unsecured freezer.
Three couples who trusted The Center for Reproductive Medicine at the Mobile Infirmary Medical Center with in vitro fertilization (IVF) treatments filed the lawsuit. Although each couple was able to create healthy embryos and some were carried to term and born, other embryos were cryogenically frozen and stored in the clinic’s freezer.
According to the record, in December 2020 “a person who is believed to have been a patient … managed to gain access to the clinic through a shared doorway. Once inside of the clinic, that patient entered the cryogenic nursery and removed several embryos, including the embryos belonging to the [plaintiffs] from their containers. Because the embryos had been stored at an extremely cold temperature, they apparently burned the patient's hand, causing the patient to drop the embryos to the floor.”
The couples later sued the clinic for wrongful death, negligence and wantonness, among other claims. Acting on the defendants’ motion to dismiss in April 2022, Mobile County Circuit Court Judge Jill Phillips dismissed the claims based upon the text of Alabama's Wrongful Death Act and historical limits on damages for emotional harm.
During Tuesday’s hearing of the Alabama Supreme Court in Mobile, which occasionally hears cases outside Montgomery, plaintiffs’ attorney Dave Wirtes argued unborn children are protected under several laws but acknowledged the state’s definition of “unborn child” may not include in vitro embryos. Specifically, one piece of statutory language currently defines an unborn child as “an individual organism of the species Homo sapiens, from fertilization until live birth.” Another protects “any unborn child, child or person, a human being specifically including an unborn child in utero, at any stage of development, regardless of viability.”
Wirtes said the lower court was wrong to dismiss the case before discovery was conducted or prior to a motion for summary judgment. And even if the wrongful death claim does not stand, the negligence claims should.
“What we're advocating is, if you're in the business of helping create embryonic children, you better also be in the business of safeguarding and protecting them,” Wirtes said, noting the security hospitals typically provide for newborn babies.
Attorney Jack “Trip” Smalley, also representing the plaintiffs, added that a jury on a similar case in California awarded $15 million to the plaintiffs in 2020.
“Under the trial court's order, under the defendants argument, these IVF embryos that are human lives — that are no different than any other embryos in the world other than their location — would have complete civil immunity,” Smalley argued, adding the word “wrongful” is key to understanding the case. “This is one of the most blatant, glaring acts of negligent security that I have ever seen. They didn't lock their doors, they didn't do the most basic of things that were asked of them. And to allow that type of wrongful act to lead to a situation where there are no civil remedies just cannot be the law in this state.”
On behalf of Mobile Infirmary, attorney Christian Hines argued the Legislature has been fully aware of IVF treatments for more than 40 years and has consistently and intentionally excluded IVF embryos from pro-life and anti-crime legislation.
“There should not be different standards in wrongful death than in the homicide statute because of their shared given purpose,” Hines said. “When it came time to defining protections, [the Legislature] defines unborn infant as ‘a human being in utero at any stage of development, regardless of viability.’ So there is nothing in there about cryopreserved embryos that are not developing outside the uterus.”
Tommy King, an attorney for the Medical Association of Alabama, an intervenor in the case, said the argument that embryos are persons should be rejected.
“There can be no abortion when there is no pregnancy, and an extrauterine embryo is not a pregnancy,” King said. “It doesn't become one until implanted in the uterus, and it doesn't even become one then, until a placenta is formed. Then life starts evolving.”
Prior to that, King said, “You don't have a human being. We don't have a beating heart. We don't have any form of a human being, we have an embryo. It's a cellular structure.”
On behalf of the Center for Reproductive Medicine, attorney Austin Mulherin said the lower court was correct because there is no common law tort claim for the wrongful taking of life in Alabama, only a statutory wrongful death claim.
Justice Greg Cook interrupted, asking if it was Mulherin’s position that the frozen embryos were indeed lives.
“The embryo is a life, but the issue today is whether the embryo was a child protected under the wrongful death of a minor, and did the Legislature extend that protection to an in vitro embryo?” Mulherin said.
Cook responded it was an “awfully narrow gap to navigate,” adding he was “deeply troubled” the case was dismissed at the pleading stage for lack of damages.
Justice Kelli Wise, one of two women on the nine-member court, asked whether it's appropriate for the judiciary to place a value on in vitro life, or whether that would be an issue for the Legislature.
Smalley responded the court could consider it like any other property, and could provide a jury with “some measure of damages to the extent we would look at what's the value to the plaintiffs.”
Cook said he was uncomfortable using the word “property” in reference to embryos, suggesting the term could be a “third rail” for a jury.
Justice Greg Shaw pressed the issue of viability, asking whether it was the defendants’ position that in vitro embryos do not have the same protections as in utero embryos.
“Would it be accurate to say that the Alabama Legislature, as a matter of public policy, has taken the position that 10 seconds before an embryo is inserted into a woman's uterus, it has zero protection as a human being, but once implanted in the woman, it has all the protections of the law and can be a victim of a homicide?” Shaw asked.
“I think that’s right,” Mulherin said.
The court took the argument under consideration and rule at a later date.
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