Alabama Supreme Court Says Couples Can Continue Wrongful Death Lawsuit Over Destruction Of Frozen Embryos
Embryo selection for IVF, light micrograph.
Credit: Science Photo Library – ZEPHYR via Getty Images.

The Alabama Supreme Court ruled late last week that frozen embryos should be recognized and protected as unborn children as several couples sue a fertility clinic over the destruction of frozen embryos. 

In an 8-1 ruling, the court said that the state’s Wrongful Death of a Minor Act applies to frozen embryos because the law protects all children regardless of their location. The justices rooted their decision in the clause of Alabama’s Constitution that says that the public policy of the state is to uphold the sanctity of unborn life. 

“Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation,” wrote Justice Jay Mitchell in the majority decision. “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. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

The ruling came after three couples sued the Center for Reproductive Medicine in Mobile after five frozen embryos from the couples were accidentally destroyed. They sued for wrongful death after the embryos were dropped after being moved out of one part of the clinic. 

The couples appealed the decision to the Supreme Court after a lower court dismissed their claims. Due to the new ruling, the couples request for punitive damages will now go back to Mobile Circuit Court. 

The lone dissent came from Justice Greg Cook, who criticized the majority decision by saying that it would curtail IVF in the state. 

“No court — anywhere in the country — has reached the conclusion the main opinion reaches. And, the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (‘IVF’) in Alabama,” he said. 


In his concurrence with the majority, Chief Justice Tom Parker cited historic thinkers like William Blackstone, Thomas Aquinas, John Calvin, and Petrus Van Mastricht to frame his understanding of Alabama’s constitutional provision saying all branches of government should protect the sanctity of life.

“All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image,” Parker wrote. 

Parker’s concurrence also referenced several books from the Bible including Genesis, Exodus, and Jeremiah. 

“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,’” he wrote, citing Jeremiah 1:5.

The decision from the court was praised by pro-life advocates who have long pushed for personhood recognition starting at conception.

“This decision made by the Alabama Supreme Court affirms the scientific reality that a new human life begins at the moment of fertilization. Each person, from the tiniest embryo to an elder nearing the end of his life, has incalculable value that deserves and is guaranteed legal protection,” Live Action President Lila Rose said.

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