Alabama’s New Law Won’t Truly Reverse its Supreme Court’s De Facto IVF Ban

A radical ruling to protect frozen embryos will end up chilling providers

On February 16, the Supreme Court of Alabama effectively outlawed in vitro fertilization (IVF), an assisted reproductive procedure in which eggs are fertilized in a laboratory and then transferred directly into the uterus. The justices did not say that they were banning one of the most widely-used fertility treatments in America, accounting for more than 1% of births annually. And yet, immediately after the court ruled that embryos in vitro (meaning outside the body) are children under Alabama law, fertility clinics in the state began pausing IVF treatments and canceling scheduled embryo transfers. Because the process involves discarding unused embryos, the ruling meant fertility clinics risk being charged with the wrongful death of a minor, and they wisely concluded they could no longer provide IVF services at all.

This week, the state’s politicians raced to contain the backlash—even as they assured their voters that they are 100% pro-life. SB159, which sailed through both chambers of the Republican legislature and was signed into law on Wednesday by Governor Kay Ivey, purports to relieve doctors and clinics of liability for all phases of IVF treatment. But it’s not clear that they can resume the routine destruction of unused embryos if the law regards those embryos as “children,” and providers are leery of resuming care. 

“We believe these bills will not provide the assurances Alabama’s fertility physicians need to be confident they can continue to provide the best standard of care to their patients without putting themselves, their colleagues, and their patients at legal risk,” the American Society for Reproductive Medicine said last week. That’s because the new legislation doesn’t actually redefine the relevant terms (“person,” “child”) so as not to include embryos in vitro, but rather provides an ad hoc exception while keeping the law’s underlying pro-life conceptualization intact. This is a tenuous “fix” that falls short of the durable protections fertility providers would need.

But the new, rushed law isn’t the story—the court’s ruling is. It represents the underlying extremism of the pro-life position, taken to its logical conclusion. And it’s merely the latest manifestation of legislative and judicial actions around the country in our post-Dobbs moment that showcase the radical nature of the social conservative position on reproductive health.

Bad Facts

It is an axiom in the legal world that “hard cases make bad law.” But here the case is just weird. In December of 2020, a patient somehow wandered into a non-public area of a fertility clinic, opened up a cryogenic tank maintained at a nippy minus-320 degrees F, and pulled out pipettes containing frozen embryos. Whether the patient dropped them or whether the straws immediately ruptured due to the temperature change is unclear. But the embryos belonging to three couples were damaged in the incident.

The couples filed a civil lawsuit for negligence and emotional distress, both of which were dismissed by the trial court. But the plaintiffs also asserted claims under Alabama's Wrongful Death of a Minor Act, on the theory that the frozen embryos were children “killed” through the clinic’s negligence.

No court has ever ruled that blastocysts consisting of just a few cells each, invisible to the naked eye and stored outside the body at temperatures incompatible with all life, are children. And indeed the trial court held that "[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "'child.’” But the plaintiffs appealed, and the Supreme Court of Alabama overruled, potentially cutting off parents in Alabama from IVF entirely.

Bad Law

The Alabama Supreme Court ruled that frozen embryos, or what it called “extrauterine children” slumbering peacefully in a “cryogenic nursery,” are “minor children” for the purposes of the state’s Wrongful Death of a Minor Act.

“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” the majority wrote, before going on to suggest that this had always been the case. Never mind that the Wrongful Death of a Minor Act was passed in 1872, well before in vitro fertilization was invented. As Justice Greg Cook, the lone dissenter noted, “For 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a ‘minor child’ who could be killed.” Moreover, for most of our nation’s history, including in 1872, there was no separate penalty for the death of a fetus that arose from an assault on a pregnant woman.

But even if you don’t accept that the Alabama forefathers always meant to call frozen embryos “babies,” the court explains that this would still be the law of the land thanks to a 2022 amendment to the state’s constitution which "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." So, frozen embryos were always children. And if they weren’t, they have been since 2022 when Article I, § 36.06(b) was amended. Justice Cook’s dissent put it best on this point: “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.”

The new law specifically crafted to immunize fertility providers doesn’t alter the fundamental definition of “child” or “person” that the justices relied on; it merely creates a legal exception from prosecution for providers. But this is hardly sufficient given that at any moment a new ruling or new law could withdraw or reverse the immunity or find a novel way to circumvent it and implicate providers.

Bad Religion

The Alabama IVF opinion garnered extra attention thanks to a concurrence by Chief Justice Tom Parker, in which he waxed lyrical on the efforts of citizens of Alabama to enshrine their Biblical worldview of the “sanctity” of human life into law.

“Recent advocates of the sanctity of life have attempted to articulate the principle on purely secular philosophical grounds,” he scoffs, adding that when Alabama adopted its 2022 amendment to the Wrongful Death of a Minor act, “they did not use the term ‘inviolability,’ with its secular connotations, but rather they chose the term ‘sanctity,’ with all of its connotations.”

Parker goes on to quote the book of Genesis, St. Thomas Aquinas, St. Augustine, John Calvin, and the theologian Petrus Van Mastricht in support of his claim that embryos can never be destroyed because they are created “in the image of God.”

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life—that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

If the Supreme Court justices were still in the business of enforcing the First Amendment’s Establishment Clause, they’d be pissed.

Last night, Governor Ivey signed legislation designed to provide immunity for fertility doctors and producers of the technology involved in IVF. But even she characterized it as a “short-term measure” designed to allow the transfer of embryos to patients currently trying to conceive. It does nothing to solve the problem of embryos which are not wanted—whether because they have a genetic anomaly incompatible with life, or because the owners of the embryo no longer wish to conceive—and cannot be discarded because they are legally “children.”

Bad Medicine

But what’s most appalling about this opinion is the justices’ dogged refusal to take responsibility for, or even acknowledge, the tragic real-world consequences of their theocratic jurisprudence.

“[T]hese types of policy-focused arguments belong before the Legislature, not this Court,” the judges yawned at the warning that their ruling would close fertility clinics and make IVF inaccessible in the state, adding that “it is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.” 

They also waved away the suggestion that, on the basis of their ruling, doctors might refuse to remove ectopic pregnancies—fertilized embryos implanted outside the uterus, often on the fallopian tubes—rather than risk civil suit or prosecution for “killing” an “extra-uterine child.” But when the plain meaning of “minor child” is elastic enough to encompass a frozen embryo 1/100th of an inch long, health practitioners can be forgiven for being worried about accidentally committing “murder” in the process of providing standard reproductive healthcare.

In his concurrence, the Chief Justice declared that settling the IVF question is for the legislature to decide, before delivering a disquisition on IVF regulations in other Western societies, which he claims “allow IVF to continue while drastically reducing the chances of embryos being killed, whether in the creation process, the implantation process, the freezing process, or by willful killing when they become inconvenient.”

The annotated recitation of foreign laws and standards which followed managed to be spectacularly wrong in each and every measure. For example, he writes that “prevailing ethical standards” in Australia and New Zealand “dictate that physicians usually make only one embryo at a time.” Unfortunately, the policy sheet he cites says no such thing. (It seems the jurist has confused the number of eggs harvested and fertilized with the number implanted.) He seems to be under the impression that implanting fewer embryos per cycle will necessitate the production of fewer eggs, and he praises E.U. countries where the standard practice is to transfer one embryo per cycle. In reality, women undergoing IVF are treated with hormones to stimulate egg production, producing between eight and 14 eggs on average. Only the “best” embryos will be implanted, and whether that number is one or three, there will still be multiple unused embryos per cycle. Nevertheless, the judge confidently asserts that “[s]uch limitations on embryo creation and transfer necessarily reduce or eliminate the need for storing embryos for extended lengths of time.”

“Italy went one step further, banning cryopreservation of embryos except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation,” he continues, linking to a paper from 2004. That year Italy passed a draconian IVF law, only to repeal most of it in 2009 because it was functionally unworkable and led to a drop in the birth rate. Or, as the justice notes sheepishly in a footnote, “Some of these laws may have changed over time, but they illustrate that other Westernized countries have, at some point, adopted these positions.”

The chief justice is trying to suggest that there is a way for the IVF process to abide by the metaphysical constraint that a frozen embryo is a “child” or “person”—but in trying to do so he’s betraying a remarkable ignorance about what reproductive health providers need to be able to do in order to assist beleaguered couples experiencing fertility issues.

Whether in the majority opinion or in the concurrence, the justices appear wholly unconcerned with the fallout of their decision, which turns fertility clinics into nursery schools with all the attendant liability. Based on the ruling, what doctor would risk a procedure which has a high failure rate if the result is that she can be sued for killing a child? In the best case scenario, she would be stuck with a freezer full of gametes that she cannot dispose of, even if the prospective parents stop paying. 

The new law purportedly gives her immunity from liability for destroying the embryos. But she'd still be, as per the previous statutes and the ruling, committing a crime. As long as that's the case, the IVF clinics would have legitimate reason to fear that some pro-life prosecutor could somehow find a way to come after them.

But as the justices said, mundane concerns like access to health care are really not their problem. Given that the legislature chose to carve out a tenuous exception, rather than redefine “child” in a way that definitively rules out embryos in vitro, it’s apparently not their problem either.

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