Alabama IVF Clinics: Potential Implications Of The LePage Case

• Published date: 05 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Goodwin Procter LLP
• Author: Susan Lee, Jaime Santos, Matt Wetzel and Anne Brendel

On February 16, 2024, the Alabama Supreme Court issued a significant and controversial ruling that gave personhood status to unimplanted human embryos'a decision with considerable implications for in vitro fertilization ("IVF") clinics in Alabama. In LePage v. Center for Reproductive Medicine, the court held that "extrauterine embryos" are considered children for purposes of Alabama's Wrongful Death of a Minor Act¹, which affords parents of a deceased child to recover punitive damages for the death of that child. This is a first-of-its-kind ruling from a state high court in the wake of the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.

Determining whether embryos are considered property, children, or something in between is a complex analysis that varies based on state laws, as we covered in detail in our previous post, Taking Security Interests in Human Reproductive Tissue: Clarifying Lender Options under Federal and State Law. Fetal personhood laws, like the one just established by the LePage case, are not "new," as we discussed in Implications of Abortion Laws for Fertility Services, and these types of laws are underpinned by each state's abortion restrictions, stemming from the religious belief that life starts at fertilization.²

Background

LePage was brought by three couples who had received IVF treatment in Mobile, Alabama at The Center for Reproductive Medicine P.C. (the "Center"). Their treatment resulted in the creation of several embryos'some were successfully implanted, and the couples contracted to have the remaining embryos maintained in the Center's cryogenic storage. In 2020, however, their frozen embryos were destroyed when a patient at an adjacent hospital wandered into the Center's tissue bank through an unsecured entrance, removed the frozen embryos without protective equipment, and dropped them when the patient's hand was freeze-burned. The couples sued the hospital and the IVF clinic alleging common-law claims and wrongful death under Alabama's Wrongful Death of a Minor Act, an 1872 statute that creates a civil cause of action "[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation." The Alabama trial court dismissed the plaintiffs' wrongful-death claims, holding the embryos did not meet the definition of a "child" under the Wrongful Death of a Minor Act.³

On appeal, the Alabama Supreme Court disagreed. Citing two prior Alabama Supreme Court decisions (from 2011 and 2012) and a variety of dictionaries, the court said that the statutory term "child" in the Wrongful Death of a Minor Act includes "an unborn child," and it held that nothing in the Act creates an exception for "unborn children who are not physically located 'in utero' ... at the time they are killed." The court reversed and...