Fertility Law Case Summary: LePage (SC-2022-0579)

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On February 16, 2024 the Supreme Court of Alabama decided in LePage v. The Center for Reproductive Medicine, P.C. that fertilized eggs are children for the purpose of Alabama’s wrongful death of a minor statute. The court held that all ‘unborn children’ whether inside or outside the womb are protected within the plain language of the statute.

Alabama’s Wrongful Death of a Minor statute permits a child’s parents to bring a civil action against any person or entity that wrongfully or negligently causes the child’s death. Because this is a civil action, it differs from criminal homicide (murder or manslaughter).

The process of in-vitro fertilization generally involves a person taking injectable medication for a period of time to stimulate oocyte production in the ovaries. Those oocytes (often called “eggs”) are retrieved by a medical professional in a minor surgery. After retrieval, they may be fertilized by the sperm of another intended parent or gamete donor. Some eggs will generally fail to fertilize but the eggs that do fertilize will generally be left to develop in a lab environment for 3-6 days. After that point, the embryos will be cryopreserved for later use or transferred into a uterus where implantation may (but is not guaranteed) to occur. A clinical pregnancy does not occur unless a transferred embryo successfully implants.

This case arose from an unfortunate situation in which an unauthorized person allegedly gained access to the cryogenic storage tanks containing the plaintiffs’ embryos. This unauthorized access led to the accidental destruction of the embryos. The individuals who underwent IVF to create these embryos brought suit against the fertility clinic alleging the wrongful death of their minor ‘children’ or negligence or wantonness in the alternative.

Prior case law in Alabama permitted the Wrongful Death of a Minor statute to apply to fetuses, initially after they had reached the point at which they could be viable outside of the womb. This standard changed in the 2011 decision in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011) which permitted recovery when a vehicle accident resulted in a miscarriage at 12 weeks gestation. This 2011 decision was made against the backdrop of the 2006 Brody Amendment that changed the definition of a ‘person’ for the purpose of criminal manslaughter to include “an unborn child in utero at any stage of development, regardless of viability”. The Court in Mack held that the purpose of the wrongful death statute was to prevent homicide, so there should be congruence between who is protected under the criminal and civil law.

In LePage, the Alabama Supreme Court decided that cryopreserved embryos are ‘extrauterine children’ and that “the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.” The court claimed that the ordinary meaning of ‘child’ encompasses all unborn children and that all such unborn ‘children’ have the right to life.

The majority decision accepts that this holding creates a discongruence with the criminal statute, but finds such a discongruence is permissible because the range of criminal conduct is now narrower than the conduct now prohibited by the wrongful death statute. The court does not reach a decision on the plantiffs’ negligence and wantonness claims on the basis that they are now moot.

It is notable that the Chief Justice of the Alabama Supreme Court wrote a separate opinion to concur in the result. Chief Justice Parker focuses his concurrence on the state constitution which “acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” The fact that he based his decision on this constitutional claim is relevant because it foreshadows the possibility that even if Alabama legislatures pass a law to strip IVF-created embryos of personhood, the Alabama Supreme Court may strike down such a law as unconstitutional.

Two justices dissented in this case, for the following three reasons. First, they claimed that the majority expanded the meaning of child under the Wrongful Death Act beyond what it meant at the time it was enacted in 1872. Second, they claimed that the decision overruled the caselaw requiring congruence between the civil and criminal statutes. Third, they expressed concerns regarding the practical implications of the decision on patients undergoing IVF in Alabama.

The dissent points out that, at least to date, no other court in any state has reached the same holding of personhood for cryopreserved embryos.

So what does this mean for IVF, both inside and outside of Alabama? In the short term, many providers are terminating IVF services in the state. There have been efforts among lawmakers to pass legislation that would allow IVF services to resume. Ultimately, though, whether these efforts will be successful may hinge on this same Court’s interpretation of the Alabama constitution. The decision does not (yet) have widespread impacts for those pursuing IVF outside of Alabama. However, this decision should serve as an example of the likely implications if cryopreserved embryos are granted personhood in other states. Individuals pursuing IVF or who have cryopreserved embryos currently in storage may wish to evaluate the political climate in the state where their embryos are stored and consider moving those embryos out of state.

Last updated: 2/28/24


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