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How the fall of Roe v. Wade led to the Alabama Supreme Court ruling that frozen embryos are children

February 27, 2024

This is a guest blog post from WWSG exclusive thought leader, Dr. Sanjay Gupta.

An Alabama Supreme Court ruling that decided frozen embryos are children, and those who destroy them can be held liable for wrongful death, shows a new way in which the overturning of Roe v. Wade can affect how embryos are viewed under certain state laws.

The ruling stems from two lawsuits in which three sets of parents who underwent in-vitro fertilization (IVF) allege that several frozen embryos at a Mobile hospital were dropped on the floor and destroyed in December 2020. The parents sued for damages. A trial court originally dismissed their claims, finding that the embryos were not people, but the state Supreme Court ruling said that the destruction of the embryos falls under the state’s Wrongful Death of a Minor law.

IVF is a form of assisted reproductive technology in which eggs are fertilized by sperm cells in a lab and the resulting embryos get transferred into a person’s uterus in hopes of leading to pregnancy.

That decision is the first known case in which a US court has ruled that frozen embryos are human beings. But several separate actions have led up to that decision, creating an unprecedented foundation for the ruling to take place — with the most significant being the US Supreme Court’s reversal of Roe v. Wade in 2022.

Events leading up to the Alabama Supreme Court decision can be traced to 2006, when the criminal statute for homicide in the state was changed to include in utero. That legislation defines a “person,” when referring to the victim of a criminal homicide or assault, as “a human being, including an unborn child in utero at any stage of development, regardless of viability.”

In 2011, a court decision in Alabama in the case of Mack v. Carmack — in which the plaintiff had a miscarriage after a car accident — found that the Wrongful Death Act could be applied to the death of the fetus in the miscarriage. Years later, in 2018, a key constitutional amendment was passed in Alabama declaring that “it is the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.”

Although the amendment was passed to restrict abortions, the Alabama Supreme Court pointed to that 2018 measure to recognize embryos as persons under state law, saying the amendment allowed for a more expansive view of the law at issue in the case.

Post-Roe, states can decide when life begins, and anti-abortion bills may determine what this means for embryos used for infertility treatments such as in vitro fertilization.

Paula Jean Hardin and her husband, Wes, are among those whose lives are on hold in the wake of the ruling. After two years of trying for a baby, they were finally on their way to starting in vitro fertilization, a path to growing their family that Hardin believed was part of a plan from God.

But a new state Supreme Court decision, which rested partly on beliefs Hardin said she shares, has suddenly led some fertility clinics in Alabama to pause their services.

“It’s just frustrating, and it’s sad, and it’s heartbreaking,” Hardin said. “I am a huge follower of Jesus,” she said. “I am for sure pro-life — like, I think it happens at conception — but I also don’t think that if we were to do IVF and it failed the first time — because sometimes it just doesn’t take — then that would make me a murderer or that would make the doctor part of a homicide.

“I don’t get that,” she said, “and I don’t see how they even get that.”

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