Alabama Supreme Court rules frozen embryos are children

Feb. 16 Alabama Supreme Court ruling raises questions about reproductive practices

By Kate Scanlon
OSV News

An Alabama Supreme Court ruling that frozen embryos qualify as children under state law has raised complex legal questions about artificial reproductive practices opposed by the Catholic Church.

The Feb. 16 ruling responded to appeals brought by couples whose embryos were destroyed in 2020, when a hospital patient removed frozen embryos from storage equipment, destroying them.

The 8-1 opinion said the state's highest court has previously held "that unborn children are 'children' for purposes of Alabama's Wrongful Death of a Minor Act ... a statute that allows parents of a deceased child to recover punitive damages for their child's death." The judges found that parents' ability to sue over the wrongful death of a minor child applies to unborn children, without an exception for "extrauterine children."

"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," it said.

Elizabeth Kirk, co-director of the Center for Law & the Human Person at The Catholic University of America Columbus School of Law in Washington, told OSV News that the cases in which the court had previously held that unborn children are "children" had "involved injuries to pregnant women and the subsequent deaths of their unborn children."

"Here, the court held that the word 'child' in the statute includes unborn children regardless of location, whether in or outside of a biological womb," she said.

The 1987 document from the Congregation (now Dicastery) for the Doctrine of the Faith known as "Donum Vitae" ("The Gift of Life") states the Church opposes in vitro fertilization and related practices, including gestational surrogacy, in part because "the connection between in vitro fertilization and the voluntary destruction of human embryos occurs too often."

Kirk said that "all of us should welcome laws and court decisions that comport with the truth of the human person, including the dignity of all human life from conception to natural death."

Opponents of the ruling said it would imperil access to infertility treatment. The University of Alabama at Birmingham health system paused IVF treatments after the ruling.

But Kirk called the ruling "a narrow matter of statutory interpretation, involving the state's wrongful death statute."

"It specifically avoided reaching broader questions such as whether unborn children are 'persons' in other contexts such as under the 14th Amendment of the U.S. Constitution," she said. "Nevertheless, to the extent that IVF practices trigger application of the wrongful death statute, such practices could be implicated."

Denise Burke, senior counsel with Alliance Defending Freedom, argued that the ruling "is a tremendous victory for life."

"The court ruled that unborn children created through assisted reproductive technology are children under Alabama law and therefore protected," Burke said. "No matter the circumstances, all human life is valuable from the moment of conception. We are grateful the court correctly found that Alabama law recognizes this fundamental truth."

According to data from the Centers for Disease Control and Prevention, approximately 238,126 patients underwent IVF treatment in 2021, resulting in 112,088 clinical pregnancies and 91,906 live births.

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