In a ruling issued on February 16, 2024, Alabama’s Supreme Court has declared that embryos created through in vitro fertilization (IVF) shall be considered children. The following events catalyzed this February ruling. All three plaintiffs in the immediate case were couples at an Alabama IVF clinic who underwent treatment. Through the treatment they received, all three couples became pregnant and gave birth to healthy babies. However, due to an accident in December 2020, the remaining embryos for all three couples were destroyed, due to being dropped for their cryogenic containment unit. In its ruling, the Alabama Supreme Court quoted the Wrongful Death of a Minor Act, ruling that it applied “to all unborn children without limitation,” meaning that the Act included unborn children that were not located in utero at the time they were killed. A number of Alabama IVF clinics have already paused their services, while clients at other clinics have requested that their eggs be moved to facilities in states with stronger abortion and reproductive rights (i.e. New York and Colorado).
Though this issue is purely limited to the state of Alabama for the time being, it begs the question on how this could potentially affect other states, should their legislative bodies decide to pass similar legislation. Some potential legal consideration that married couples may want to consider moving forward are:
- Post-Nuptial Agreements: if one biological parent dies prior to IVF coming to fruition, are both biological parents going to be listed on the birth certificate?
- If a married couple has fertilized embryos in cryogenic storage and they separated, how will the married couple address custody of the embryo?
- Who has the right to access the fertilized embryo in the event of divorce?
As stated, this Alabama ruling only affects the state of Alabama for now. However, thinking of the possibilities of how this can affect the rest of the country may help our respective legislative bodies moving forward.