Background
On February 16, 2024, the Supreme Court of Alabama issued a decision in LePage v. Mobile Infirmary Clinic, Inc., which consolidated the appeals of three lawsuits regarding a single incident in 2020.
In December 2020, a patient at the hospital operated by the Mobile Infirmary Association entered the cryogenic nursery, where embryos created through in vitro fertilization (IVF) are stored at subzero temperatures. IVF involves combining sperm and mature eggs to create embryos, which are later inserted into the uterus. Those embryos can then be stored indefinitely. The patient attempted to remove several embryos and dropped them on the floor, destroying five embryos in the process. The patient’s actions affected three couples, and each couple then filed a civil action under Alabama’s Wrongful Death of a Minor Act (“the Act”) — asserting that the destroyed embryos should be regarded as children.
The Concept of Fetal* Personhood
Once viewed as fringe and espousing radical legal theories, the fetal personhood movement’s efforts are now in the national spotlight. The movement’s primary goal is to redefine a “person” or “human being” as existing from the moment of fertilization or conception, granting all zygotes, embryos, and fetuses the same rights as people under state and federal laws. Efforts to establish legal personhood for zygotes, embryos, and fetuses — whether through ballot initiatives, legislative bills, or court decisions — first emerged in the aftermath of Roe and gained steam in the wake of Dobbs.
While many of the movement’s earliest and boldest attempts proved unsuccessful, many states have started integrating various protections for prenatal life in their laws over the years. Currently, the vast majority of states have “fetal homicide” laws. Some states have adopted prenatal personhood provisions that are so broad that they could be understood to apply to all state laws. Others define “person” to include a fetus for the purpose of a particular area of law (e.g., criminal law) or a specific law, such as wrongful death, child abuse, and child support laws, among others. In the current legislative session, lawmakers in at least twelve states are considering bills that would establish prenatal personhood.
At the federal level, the Supreme Court has indicated that it will not weigh in on prenatal personhood, with the majority opinion in Dobbs stating that the court takes no position on “if and when prenatal life is entitled to any of the rights enjoyed after birth.” In October 2022, the court declined to take up a case to determine whether fetuses are entitled to due process and equal protection rights under the U.S. Constitution’s 14th Amendment. Without a clear federal standard, lawmakers and judges in states like Alabama are testing the viability of granting legal personhood to prenatal life at various stages of development.
The Alabama Supreme Court’s Decision
In LePage, the main question posed to the Alabama Supreme Court was whether an embryo that has not been implanted in the uterus could be considered a “child” under the Act. As it is written, the Act applies “when the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation.” The majority opinion ultimately concluded that “unborn children” are “children” under the Act, without exception or limitation.
The court considered the Alabama Supreme Court’s previous treatment of the term “minor child,” in the case of Mack v. Carmack, which held that fetuses in utero were considered children and deliberated the “ordinary” meaning of “child” — arguing that both include “children who have not yet been born.” Moreover, the court explicitly ruled out any exception or limitation “based on developmental stage, physical location, or any other ancillary characteristics.” The majority then threw out the defense’s argument that extending the scope of the Act to include unborn children would create incongruity with Alabama’s more narrow definition of person in its criminal-homicide laws. Similarly, it dismissed “public-policy outcomes” of the decision, such as making IVF prohibitively expensive in Alabama, arguing that those issues “belong before the Legislature.”
In his concurring opinion, Chief Justice Tom Parker analyzed the Sanctity of Unborn Life Amendment to Alabama’s Constitution, which the majority briefly referenced. In 2018, Alabama voters passed Ballot Amendment Two (later added as Article 1 Section 36.06 of the state Constitution), which “acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” Chief Justice Parker analyzed the deep religious connotations of using the word “sanctity.” He concluded that because the Alabama Constitution specifically uses the word “sanctity,” the following three principles applied to all prenatal life: “(1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”
The Discriminatory Effects of the Decision
The Alabama Supreme Court’s ruling has already begun to have disastrous consequences for IVF patients in the state. On February 21, the University of Alabama at Birmingham paused IVF treatments to protect both physicians and patients from potential criminal liability for the destruction of embryos. Moreover, the court’s decision will disproportionately affect certain individuals and couples, including those who are LGBTQIA+, older, or people of color.
LGBTQIA+ individuals in same-sex relationships face unique barriers to having children. Often, the only way for LGBTQIA+ individuals in same-sex relationships to have biological children is through the use of assisted reproductive technologies like IVF. People with uteruses over the age of 32 in Alabama can face barriers — with research showing that the fertility of people with uteruses starts to decline significantly after that age — making them more reliant on assisted reproductive technologies to start their own families. Finally, women of color, particularly Black women, are more likely to have to undergo multiple rounds of IVF to have a live birth. A study that analyzed data from over 100,000 IVF cycles found that Black women were less likely than white, Latina, or Asian women to get pregnant through IVF. Black women who underwent IVF also have significantly lower birth rates than white women.
With a moratorium on IVF treatments in Alabama, these communities are left with limited options to begin their families within the state. This ruling will likely force them to either forgo IVF treatment altogether or to travel out-of-state for embryo creation and storage, adding additional financial burdens to the already expensive IVF process.
Conclusion
Following the decision, Alabama quickly passed a law that protects IVF providers from lawsuits and criminal prosecutions for the destruction of embryos that occur during IVF treatment. However, the damage caused by Alabama’s Supreme Court is done. Many states already have fetal personhood provisions in various parts of their laws, with only a few explicitly exempting IVF or other assisted reproductive technologies or requiring that the fetus be in the womb for fetal personhood to apply.
With Alabama ruling that IVF embryos not in utero carry personhood status, more states may follow its lead and limit IVF access for those who need it most.
* = While the LePage case involves the destruction of embryos created through IVF, not fetuses, the term “fetal personhood” is often used when attempting to give personhood rights to any stage of prenatal development. Therefore, the term “fetal personhood” is used throughout this piece. An embryo is the early stage of development from fertilization until ten weeks gestation, while a fetus is the stage of development after ten weeks gestation until birth.
