Alabama Supreme Court Ruling on Frozen Embryos Raises Complex Questions for IVF and Fertility Industry

February 27, 2024

The Alabama Supreme Court recently ruled that frozen embryos, or “extrauterine children,” should be afforded the same legal protections as living children under a state wrongful death law.

In the underlying case at issue, the frozen embryos of three couples were destroyed in an accident at a fertility clinic in Alabama after a patient entered an unlocked storage area and picked up and dropped several frozen embryos on the floor. After a lower court dismissed their case after finding that embryos should be considered property and not persons, the three couples whose embryos were destroyed asked the Alabama Supreme Court to reconsider whether their embryos were protected under the state’s Wrongful Death of a Minor Act, which allows parents of a deceased child to recover punitive damages.

The Alabama Supreme Court sided with the three couples, finding that the fertility clinic’s failure to secure its storage area, where the frozen embryos were being “kept alive in a cryogenic nursery while they awaited implantation,” was a negligent act resulting in the death of the embryos.

Citing to language protecting the rights of unborn children in the Alabama state constitution, the court found that the wrongful death law provided no exception—written or unwritten—for “extrauterine children,” or “unborn children who are located outside of a biological uterus at the time they are killed.” In other words, the court held that frozen embryos should be afforded the same legal protections as living children under the law.

With nearly 100,000 babies born in the United States each year through in vitro fertilization (IVF) [1] and the potential for similar rulings or new legislation in other states to codify personhood status for embryos, the Alabama Supreme Court ruling raises complex questions for both reproductive healthcare providers and patients seeking such services, including IVF treatment. Companies who provide embryo storage, transportation, and other services to fertility clinics will also need to closely monitor these types of legal changes.


What is the immediate impact of the ruling?

The Alabama Supreme Court’s ruling does not prohibit IVF. It has, however, had a chilling effect on access to IVF treatment in the state. Because the ruling extends the same legal protections available to children under Alabama state law to embryos, those in the fertility industry are now grappling with the possibility of facing wrongful death or other civil or criminal charges in Alabama if embryos are lost or discarded during IVF treatment.

At least three Alabama-based fertility providers have stopped or limited IVF services, including the state’s largest hospital system: the University of Alabama at Birmingham Health System. Other Alabama IVF providers have stated they will continue to provide IVF services, but plan to take certain precautions, such as modifying their consent forms to make patients aware of the potential implications of the Alabama Supreme Court ruling or refraining from discarding any frozen embryos without a notary-signed consent from patients.

What unanswered questions remain?

During the IVF process, multiple eggs are harvested and fertilized. Embryos not immediately implanted are frozen and stored for future use. Freezing multiple embryos at one time increases the likelihood of a successful pregnancy, while also making IVF treatment more economical for patients by avoiding the need to undergo repeated egg retrieval cycles.

It is not uncommon for some frozen embryos to fail to develop or to be discarded during the IVF process, including when genetic abnormalities are identified or when a patient does not wish to have any more children. The Alabama ruling raises the question of whether healthcare providers (or their subcontractors that transport and store frozen embryos) could be charged for wrongful death or other civil or criminal charges in the event any embryos are lost or discarded during the normal IVF process.

Similarly, it is unclear whether a patient can electively decide to discard or destroy an embryo without the threat of legal action (including criminal charges under Alabama’s homicide statute if an embryo is considered a person). Likewise, reproductive health providers and patients are left wondering if legal charges could be brought if an implanted embryo fails to develop and the patient miscarries.

In attempt to avoid such legal outcomes, providers could change their IVF protocols to create only one embryo per cycle or to require any unused embryos to be stored indefinitely—even after a patient has decided to have no more children. Both of these potential treatment changes would make the IVF process more difficult and costly for patients struggling with infertility, perhaps prohibitively so.

Reproductive healthcare providers and those involved in the fertility industry should examine their policies and procedures with respect to their Alabama operations. For example, these parties may need to reexamine their template contracts for embryo storage to see if any modifications are necessary in light of the unknown legal ramifications related to the Alabama ruling. Many embryo storage agreements may permit the party providing storage to discard an embryo for non-payment. This practice may need to be modified in light of the ruling. For the same reasons, employers and health insurers may wish to examine the scope of the fertility benefits their plans will cover in Alabama.

Does the Alabama ruling impact fertility services outside of Alabama?

While the Alabama ruling will not have a direct impact on fertility services provided outside of Alabama, there is the potential for indirect impacts. The Alabama Supreme Court’s ruling, which addresses an Alabama state law, only directly impacts the interpretation of law in Alabama. It is not likely that the US Supreme Court would be asked to review the ruling because it does not address the US Constitution or any federal laws.

However, there are potential collateral issues that may impact fertility providers operating in other states. For example, out-of-state fertility providers who market reproductive health services to patients and providers in Alabama may need to reassess these activities in light of the ruling. Additionally, fertility providers and patients should closely monitor laws in their home states.

The Alabama decision follows a trend of restrictive reproductive rights legislation and rulings in the wake of the US Supreme Court’s decision to overturn Roe v. Wade in the June 2022 Dobbs v. Jackson Women’s Health Organization ruling. It is possible that lawmakers in other states may propose laws that would recognize embryos and fetuses as “persons” with the same rights to protection under civil and criminal state laws. Anti-abortion groups in states with restrictive abortion laws or laws otherwise protecting the rights of unborn children may also seek to bring lawsuits that would test the same legal issue.

What has the reaction to the ruling been from lawmakers and healthcare providers?

In its ruling, the Alabama Supreme Court expressed that any policy-focused arguments regarding the legal rights of unborn children should be handled by the state’s legislature, not the courts. In the week since the ruling, Alabama lawmakers, including Alabama Governor Kay Ivey, have voiced support for protecting access to IVF services in the state.

On February 22, 2024, Alabama Senator Tim Melson, who is a physician and the chair of the Alabama Senate’s Healthcare Committee, announced proposed legislation aimed at protecting IVF services. Senator Melson’s draft legislation provides that “any human egg that is fertilized in vitro shall be considered a potential life but shall not be considered for any purposes a human life, a human being, a person, or an unborn life unless and until the fertilized egg is implanted into a woman’s uterus and a viable pregnancy can be medically detected.”

Notably, both Governor Ivey and Senator Melson are Republicans. On the other side of the political aisle, Alabama House Democrats introduced separate legislation on February 22 that would make clear that embryos outside of a uterus are not considered human beings under Alabama law.

Similarly, various medical organizations have issued statements in support of IVF access in Alabama, including the Medical Association of Alabama, which has asked the Alabama Supreme Court to reconsider or suspend its ruling so as to not impact IVF services.

Prior to the Alabama Supreme Court’s ruling, Senators Tammy Duckworth and Patty Murray—Democrats representing Illinois and Washington, respectively—proposed a federal bill that would protect the right to access fertility treatments, including IVF, in all states. The senators are expected to demand a vote on their proposed bill, which was first introduced in 2022 and reintroduced in January 2024, in the wake of the Alabama ruling and the potential for similar rulings or legislation in other states.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:

Sameer V. Mohan (Houston)
Banee Pachuca (Houston)
Sharon Perley Masling (Washington, DC)