Alabama Court Rules Frozen Embryos Made by IVF Are "Children"(theintercept.com)
theintercept.com
Alabama Court Rules Frozen Embryos Made by IVF Are "Children"
https://theintercept.com/2024/02/20/ivf-embryos-alabama-children-court/
36 comments
What effects does this have on inheritance, child support, etc? If someone burns down the facility that holds frozen embryos, will they be charged with mass murder? If there's a natural disaster, will they be counted among the dead?
The whole thing makes no sense and clearly nobody thought about any of the consequences of such a ruling.
The whole thing makes no sense and clearly nobody thought about any of the consequences of such a ruling.
This sounds insane.
FTA:
"The court’s decision specifically permits three couples whose frozen embryos were accidentally destroyed in a Mobile, Alabama, reproductive clinic to sue the facility for wrongful death."
FTA:
"The court’s decision specifically permits three couples whose frozen embryos were accidentally destroyed in a Mobile, Alabama, reproductive clinic to sue the facility for wrongful death."
[deleted]
> Although when enough scripture is cited in the judgement, the ruling might become more easily overturned.
I don’t think you appreciate how right wing the Supreme Court has been stacked if you think that this will be a negative in their eyes.
I don’t think you appreciate how right wing the Supreme Court has been stacked if you think that this will be a negative in their eyes.
It was a very narrow ruling regarding civil liability for wrongful death as it applies to the word “children”.
Some insurance companies tried to say that these families had no financial recourse from embryos being destroyed because a certain law did not apply since they were not children.
They explicitly state that this does not confer criminal liability due to different wording in the law. It also states that this does not negate waiver, estoppel or affirmative defenses. It also upholds the dismissal of the case due to lack of wantonness or negligence on the part of the defendants.
This is the media blowing something up for click bait. To answer your questions in order: None. No. No.
Some insurance companies tried to say that these families had no financial recourse from embryos being destroyed because a certain law did not apply since they were not children.
They explicitly state that this does not confer criminal liability due to different wording in the law. It also states that this does not negate waiver, estoppel or affirmative defenses. It also upholds the dismissal of the case due to lack of wantonness or negligence on the part of the defendants.
This is the media blowing something up for click bait. To answer your questions in order: None. No. No.
It seems like the specific case here is narrow, but the implications are quite broad. The case applies a broad 2018 "sanctity of life" Constitutional amendment to a specific question around IVF clinic liability, and finds that this amendment makes the clinics liable. It's very hard to believe this ruling won't have very serious implications for the IVF industry in Alabama, at a minimum.
And when you've got State Supreme Court judges writing things like "It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you, Before you were born I sanctified you.’ Jeremiah 1:5,” there's every reason to believe that further exciting rulings could be expected from that court.
And when you've got State Supreme Court judges writing things like "It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you, Before you were born I sanctified you.’ Jeremiah 1:5,” there's every reason to believe that further exciting rulings could be expected from that court.
Negative. The court actually upholds the lower courts dismissal of the case.
It simply holds that the word “children” in a law written in the 1800s includes the unborn. That is that an insurance company can’t argue that because this thing wasn’t born, it’s not a child, and they are immune from liability.
They cite partial birth mishap as one reason for that. Like if a doctor accidentally decapites a child during delivery, their insurance would still be liable. Or if a pregnant woman is murdered, the killer could be held financially liable for both. Had they ruled the other way, that would not be the case.
The criminal statute had been updated in 2008 with different wording to clarify this matter.
Again, very very narrow ruling. Experts in a field made a nuanced decision that the media is hyping for views.
It simply holds that the word “children” in a law written in the 1800s includes the unborn. That is that an insurance company can’t argue that because this thing wasn’t born, it’s not a child, and they are immune from liability.
They cite partial birth mishap as one reason for that. Like if a doctor accidentally decapites a child during delivery, their insurance would still be liable. Or if a pregnant woman is murdered, the killer could be held financially liable for both. Had they ruled the other way, that would not be the case.
The criminal statute had been updated in 2008 with different wording to clarify this matter.
Again, very very narrow ruling. Experts in a field made a nuanced decision that the media is hyping for views.
Considering an assembly of ~10 cells an "unborn child," to the point of allowing wrongful death suits, seems quite extreme to me. That's a far cry from accidentally decapitating a baby during delivery.
Also, embryos are so early that the very mechanics of life are different. Embryos last decades in cold storage, good luck trying that with a fetus. They're not in a womb. They're not on a path to becoming babies until they're successfully implanted. These "experts" are straining the law far beyond any possible plain meaning or original intent.
Also, embryos are so early that the very mechanics of life are different. Embryos last decades in cold storage, good luck trying that with a fetus. They're not in a womb. They're not on a path to becoming babies until they're successfully implanted. These "experts" are straining the law far beyond any possible plain meaning or original intent.
Yeah man, I don’t disagree with any of that. But that is not what the ruling is about. The law, as it is written, only says “children”. This was a law written in the 1800s. It does not consider any of that.
The defense said, “hey you should throw this out because that thing isn’t a child, it hasn’t been born yet. Also, even if it was a child, they signed waivers and accidents happen.” The court said, “you can’t just say this doesn’t count because it hasn’t been born yet, but your right about the other stuff. Case dismissed.”
They did not rule on the number of cells that constitutes a child because that was not the argument. Here is the pseudocode:
Defense: If(!born) then child = false
Judge: Error
Media: mind blown
You: ‘If(cells <= 10) then child = false’ works on my machine
Me: That’s not what caused the error
The defense said, “hey you should throw this out because that thing isn’t a child, it hasn’t been born yet. Also, even if it was a child, they signed waivers and accidents happen.” The court said, “you can’t just say this doesn’t count because it hasn’t been born yet, but your right about the other stuff. Case dismissed.”
They did not rule on the number of cells that constitutes a child because that was not the argument. Here is the pseudocode:
Defense: If(!born) then child = false
Judge: Error
Media: mind blown
You: ‘If(cells <= 10) then child = false’ works on my machine
Me: That’s not what caused the error
> Yeah man, I don’t disagree with any of that. But that is not what the ruling is about. The law, as it is written, only says “children”. This was a law written in the 1800s. It does not consider any of that.
A law in the 1800s did not consider embryos children. They did not have funerals for every miscarriage, most people didn’t name children until after birth, and in the early 1800s abortion was a not uncommon practice and even advertised.
I think it’s also worth noting that when that started to change it was racist and focused on babies, still having no concept of an embryo as a human, as white people got concerned that immigrants and former slaves would outbreed them:
https://www.nationalgeographic.com/history/article/the-compl...
Alabama was early to criminalize but the laws reflected the understanding of the time–functional but not scientific–and banned inducing a miscarriage because they understood how pregnancy worked but didn’t treat it as murder, following biblical precedent. The total ban is a historical precedent going all the way back to 2019: https://www.montgomeryadvertiser.com/story/news/2022/06/24/a...
A law in the 1800s did not consider embryos children. They did not have funerals for every miscarriage, most people didn’t name children until after birth, and in the early 1800s abortion was a not uncommon practice and even advertised.
I think it’s also worth noting that when that started to change it was racist and focused on babies, still having no concept of an embryo as a human, as white people got concerned that immigrants and former slaves would outbreed them:
https://www.nationalgeographic.com/history/article/the-compl...
Alabama was early to criminalize but the laws reflected the understanding of the time–functional but not scientific–and banned inducing a miscarriage because they understood how pregnancy worked but didn’t treat it as murder, following biblical precedent. The total ban is a historical precedent going all the way back to 2019: https://www.montgomeryadvertiser.com/story/news/2022/06/24/a...
https://www.al.com/news/mobile/2021/11/frozen-embryos-not-pe...
The defense was arguing that frozen non-implanted embryos are not “children”, not just unborn.
The defense was arguing that frozen non-implanted embryos are not “children”, not just unborn.
From the ruling:
The parties to these cases have raised many difficult questions, including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to such children, and the public-policy implications of treating extrauterine children as human beings. But the Court today need not address these questions because, as explained below, the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.
Under the defendants' test, even a full-term infant conceived through IVF and gestated to term would not qualify as a "child" or "person," because such a child would be "unborn" (having never been delivered from a biological womb).
Unborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.
As I have stated above this is a very narrow ruling. About born or unborn. And what’s more it doesn’t even rule in favor of the families. It upholds the dismissal of the case on other grounds.
You are all trying to apply this to cases that they explicitly side stepped! The ONLY questioned answered by the court is: Does this law apply to unborn children? Nothing more.
The parties to these cases have raised many difficult questions, including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to such children, and the public-policy implications of treating extrauterine children as human beings. But the Court today need not address these questions because, as explained below, the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.
Under the defendants' test, even a full-term infant conceived through IVF and gestated to term would not qualify as a "child" or "person," because such a child would be "unborn" (having never been delivered from a biological womb).
Unborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.
As I have stated above this is a very narrow ruling. About born or unborn. And what’s more it doesn’t even rule in favor of the families. It upholds the dismissal of the case on other grounds.
You are all trying to apply this to cases that they explicitly side stepped! The ONLY questioned answered by the court is: Does this law apply to unborn children? Nothing more.
It's very strange because I read the "Wrongful Death of a Minor" statute and it says nothing about born vs. unborn children, unless it was recently amended. If I'm reading you correctly, you're saying that the Court previously interpreted that "black letter statute" wording to include unborn children (even if the actual wording of the statute does not) and in this case they're merely taking the "relatively uncontroversial" step of expanding their novel interpretation of the statute so that it also includes IVF embryos. Even though the statute discusses neither.
The dissenting justice seems to confirm my impression: "Justice Greg Cook, who filed the only full dissent to the majority opinion, said the 1872 law did not define "minor child" and was being stretched from the original intent to cover frozen embryos."
So the court has now made two rulings that vastly expand the scope of the "minor child" that is mentioned in the "black letter statute". This is obviously fraught with ethical implications and implications for future cases. But since the court asserted that this is simply applying "statute" and there are "no major ethical implications", I guess we just have to accept their assertion? That seems foolish.
The dissenting justice seems to confirm my impression: "Justice Greg Cook, who filed the only full dissent to the majority opinion, said the 1872 law did not define "minor child" and was being stretched from the original intent to cover frozen embryos."
So the court has now made two rulings that vastly expand the scope of the "minor child" that is mentioned in the "black letter statute". This is obviously fraught with ethical implications and implications for future cases. But since the court asserted that this is simply applying "statute" and there are "no major ethical implications", I guess we just have to accept their assertion? That seems foolish.
> The ONLY questioned answered by the court is: Does this law apply to unborn children?
No.
The very beginning of the opinion:
> This Court has long held that unborn children are "children" for purposes of Alabama's Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child's death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.
No.
The very beginning of the opinion:
> This Court has long held that unborn children are "children" for purposes of Alabama's Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child's death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.
Yes. It applies to all unborn children. The central question presented in these consolidated appeals is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed.
The circumstances of the case, that is that it involves death of embryos kept in a cryogenic nursery, is not material to the validity of the argument.
They did not say: even if they are embryos. They said all unborn children.
This does not mean embryos ARE children. That was not what was argued nor what the court decided upon. You are inferring meaning outside the scope of the ruling. They side stepped the part you are upset about. They are very, very clear that this is about unborn children. The word embryos only appear once - while discussing the surround context, not the finding of the court or the question they were answering.
The circumstances of the case, that is that it involves death of embryos kept in a cryogenic nursery, is not material to the validity of the argument.
They did not say: even if they are embryos. They said all unborn children.
This does not mean embryos ARE children. That was not what was argued nor what the court decided upon. You are inferring meaning outside the scope of the ruling. They side stepped the part you are upset about. They are very, very clear that this is about unborn children. The word embryos only appear once - while discussing the surround context, not the finding of the court or the question they were answering.
I am not inferring or making any claims. I am merely correcting your incorrect claims.
I believe that you are not arguing in good faith. The opinion is very clear on the matter. It is also extremely clear on what they are clarifying. You are making claims that make it clear you have either not read the opinion or are intentionally misconstruing it's language.
I believe that you are not arguing in good faith. The opinion is very clear on the matter. It is also extremely clear on what they are clarifying. You are making claims that make it clear you have either not read the opinion or are intentionally misconstruing it's language.
Haha you feel like I’m wrong but you just can’t articulate why? I understand bro. Have a good night.
And here’s the opinion, in case you are still confused:
https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-...
https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-...
Yes, but the number of cells is somewhat relevant. Any unfertilized egg or misplaced sperm is an important fraction of a child. A single fertilized egg could be viewed as a child.
The court did not rule on that. This specific law only says children. The defense said this case did not apply because these are embryos that had not been born. The court said that’s not a valid argument because the word children includes unborn children.
For you to then say, ohh well these don’t meet the development criteria is a different argument entirely. That was not the test proposed by the defense. Had they said, this does not count because it doesn’t meet a cell count threshold, then that would be something the court did not rule on.
For you to then say, ohh well these don’t meet the development criteria is a different argument entirely. That was not the test proposed by the defense. Had they said, this does not count because it doesn’t meet a cell count threshold, then that would be something the court did not rule on.
> It also upholds the dismissal of the case due to lack of wantonness or negligence on the part of the defendants.
It dismissed the claims, not the case. And because that point was made moot by ruling that extrauterine embryos are children.
Page 23:
https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-...
It dismissed the claims, not the case. And because that point was made moot by ruling that extrauterine embryos are children.
Page 23:
https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-...
Moot mean “open to discussion”.
We reverse the trial court's dismissal of the plaintiffs' wrongful death claims in both appeals (regarding the born/unborn). Because the plaintiffs' alternative negligence and wantonness claims are now moot (open for discussion), we affirm the trial court's dismissal of those claims on that basis.
We reverse the trial court's dismissal of the plaintiffs' wrongful death claims in both appeals (regarding the born/unborn). Because the plaintiffs' alternative negligence and wantonness claims are now moot (open for discussion), we affirm the trial court's dismissal of those claims on that basis.
It means that those claims don’t matter anymore because of the decision on another. Because of Decision A, Claim 2 doesn’t apply anymore. The negligence claim was a back up in case the court found that the embryos were not children. Because they were found to be children, the negligence claim was no longer relevant and therefore dismissed.
Here is the text of the law:
(I paraphrased the recourse portion)
If the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either then (people can sue)
You need all three elements: 1) Death 2) Child 3) Wrongful Act/Neglience
If 1 AND 2 AND 3 then ACTION
Trial found 1 true, 2 and 3 false. Ala SC said actually 2 is true, but 3 is still false.
Your reading makes no sense. “Yea its a child, so it doesn’t matter if there was negligence”. No. You need all 3.
They said: “We find lower court was wrong, 2 is reversed and now true. Since this now makes clause 3 open to discussion, we affirm that they were right in saying 3 was false. As a result the case is dismissed.”
If the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either then (people can sue)
You need all three elements: 1) Death 2) Child 3) Wrongful Act/Neglience
If 1 AND 2 AND 3 then ACTION
Trial found 1 true, 2 and 3 false. Ala SC said actually 2 is true, but 3 is still false.
Your reading makes no sense. “Yea its a child, so it doesn’t matter if there was negligence”. No. You need all 3.
They said: “We find lower court was wrong, 2 is reversed and now true. Since this now makes clause 3 open to discussion, we affirm that they were right in saying 3 was false. As a result the case is dismissed.”
I'm honestly not sure if you are being intentionally obtuse or you just haven't read the opinion.
> Each set of plaintiffs asserted claims under Alabama's Wrongful Death of a Minor Act, § 6-5- 391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes' case) or negligence and wantonness (in the Aysennes' case), for which they sought compensatory damages, including damages for mental anguish and emotional distress.
(page 5)
Note: "In the alternative"
There were two claims:
1. They claim coverage by the Wrongful Death of a Minor Act.
2. They provide an alternative, so that if the Wrongful Death of a Minor Act does _not_ apply, they claim negligence.
These are two separate claims. The ruling states that since Claim 1 does apply (frozen embryos do fall under the Wrongful Death of a Minor Act), then Claim 2 is no longer relevant, because it was only relevant if Claim 1 did not apply. Therefore Claim 2, is dismissed, upholding the lower court's decision _on that claim_ (but not the full case).
> Each set of plaintiffs asserted claims under Alabama's Wrongful Death of a Minor Act, § 6-5- 391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes' case) or negligence and wantonness (in the Aysennes' case), for which they sought compensatory damages, including damages for mental anguish and emotional distress.
(page 5)
Note: "In the alternative"
There were two claims:
1. They claim coverage by the Wrongful Death of a Minor Act.
2. They provide an alternative, so that if the Wrongful Death of a Minor Act does _not_ apply, they claim negligence.
These are two separate claims. The ruling states that since Claim 1 does apply (frozen embryos do fall under the Wrongful Death of a Minor Act), then Claim 2 is no longer relevant, because it was only relevant if Claim 1 did not apply. Therefore Claim 2, is dismissed, upholding the lower court's decision _on that claim_ (but not the full case).
Right, but by upholding that there was no negligence in the alternative case they prevent the conditions in Wrongful Death of a Minor from being met. There is nothing left to argue.
Are you suggesting the lower court now over rules the upper court and say there was negligence? The upper court has already said there wasn’t. Just because it was settled in a side branch doesn’t reverse the decision or leave it up for discussion.
Are you suggesting the lower court now over rules the upper court and say there was negligence? The upper court has already said there wasn’t. Just because it was settled in a side branch doesn’t reverse the decision or leave it up for discussion.
I now believe that you just don't understand how the courts work.
Only a day later and you were already proven wrong given that hospitals are pausing IVF at the behest of their lawyers.
Under what circumstances is it legal to freeze a child in Alabama? More importantly, why?
Is it specifically not legal? What’s illegal is _harming_ a child, but that doesn’t mean a non-harmful process would be illegal if someone suddenly developed, say, a way to safely freeze someone with an incurable disease or in a hypothetical emergency scenario where you needed more time to treat them.
That might seem pedantic but it’s a key distinction because IVF doesn’t involve freezing embryos because the manufacturers of medical freezers need the money but for medically-necessary purposes. Retrieving things like eggs and sperm is difficult and like any medical procedure involves risk to the parent; freezing allows those risks to be taken only once for multiple attempts. Freezing also allows screening for genetic and structural defects and, of course, it avoids endangering the mother and children trying to do everything all at once – the risks go up significantly starting from twins.
So restating your question: would it be legal to freeze a child in Alabama to protect them from harm if we had a way to do that which is as safe as IVF? Of course, just as we recognize the difference between “cutting a child with a knife” and “saving their life with a surgical procedure”.
That might seem pedantic but it’s a key distinction because IVF doesn’t involve freezing embryos because the manufacturers of medical freezers need the money but for medically-necessary purposes. Retrieving things like eggs and sperm is difficult and like any medical procedure involves risk to the parent; freezing allows those risks to be taken only once for multiple attempts. Freezing also allows screening for genetic and structural defects and, of course, it avoids endangering the mother and children trying to do everything all at once – the risks go up significantly starting from twins.
So restating your question: would it be legal to freeze a child in Alabama to protect them from harm if we had a way to do that which is as safe as IVF? Of course, just as we recognize the difference between “cutting a child with a knife” and “saving their life with a surgical procedure”.
I wonder whether there's any potential interplay between this and the fact that Alabama doesn't seem to have any regulations against cloning human embryos[0,1].
[0] https://en.wikipedia.org/wiki/Human_cloning#Current_law [1] https://www.thenewatlantis.com/publications/appendix-state-l...
[0] https://en.wikipedia.org/wiki/Human_cloning#Current_law [1] https://www.thenewatlantis.com/publications/appendix-state-l...
The problem here is not with the court ruling, it's with the law. If life begins at conception, this is what you get.
A facility messed up and a bunch of embryos were destroyed. Now the potential parents can sue.
That doesn’t sound bad.
Embryos shouldn’t be treated like bags of salt. More like pets, I suppose.
If faciiities can’t avoid negligence they shouldn’t operate.
That doesn’t sound bad.
Embryos shouldn’t be treated like bags of salt. More like pets, I suppose.
If faciiities can’t avoid negligence they shouldn’t operate.
Valuable property, sure, but there are a ton of negative outcomes to treating one Christian schism’s biblical fanfic as law: IVF almost always ends up creating multiple embryos. If one fails to implant or develop, if it’s a child that means the same kind of legal procedure you’d need for an actual dead child - which is pure cruelty to a prospective parent who has already had something they very much wanted to work fail. If it’s a child, you’re apparently obligated to pay to store those embryos forever to avoid murder charges - perhaps you even need to endow a trust or the state needs to accept them into the foster system if you die? What are the odds that someone will even argue that you should be compelled to try using them even if the mother doesn’t want to, her health or finances aren’t good, etc.?
Like all pregnancies, IVF also has failure modes which end up needing an abortion to protect the mother’s health and fertility, and the people trying it are more likely to have problems (older, predispositions, etc. - that’s why they’re seeking treatment!) so it’s an amplified version of the normal risks where you would be paying a lot for the opportunity to have armed state security agents force you to take significant health risks. That’s guaranteed to kill people.
Like all pregnancies, IVF also has failure modes which end up needing an abortion to protect the mother’s health and fertility, and the people trying it are more likely to have problems (older, predispositions, etc. - that’s why they’re seeking treatment!) so it’s an amplified version of the normal risks where you would be paying a lot for the opportunity to have armed state security agents force you to take significant health risks. That’s guaranteed to kill people.
[deleted]
Don't do IVF in Alabama, I guess. Although when enough scripture is cited in the judgement, the ruling might become more easily overturned.