As you probably have heard by now, the Alabama Supreme Court recently ruled that a group of in vitro fertilization (IVF) patients could sue for wrongful death because their frozen embryos were destroyed while in the defendant's facility.
The decision has gathered a lot of attention (see links below) and it does have significant consequences, but there are a couple of things that the coverage is not mentioning. First, the decision is not unprecedented and, in Alabama's case, it is not that surprising since the state's supreme court had already decided (years ago) to recognize a wrongful death claim for the death of a fetus.
Typically, wrongful death statutes state the circumstances under which survivors of "a person" who dies because of someone's negligence can recover. And, typically, that language ("a person") is subject to interpretation. Some statutes provide a definition, while in other states courts have had to interpret the meaning of the words or to decipher the intent of the legislature.
On the issue of who should be considered a person, jurisdictions fall into one of three categories: (1) those that define a person as someone who is born alive (which requires evidence of a live birth before the death for which the wrongful death suit is brought; (2) those who consider life to begin at conception (Illinois uses this approach in its statute) and (3) those who "compromise" by holding that "personhood" starts at the point of "viability" (usually defined as the point in time when the fetus could survive independently of the mother).
Back in 2011 or 2012, Alabama decided a case adopting the view that life begins at conception. In that case, the court held that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability." I wrote about that case here. Alabama then reaffirmed its decision in 2017.
And Alabama is not alone in considering this question. I do not remember how these cases were ultimately decided but I know the question was litigated in Nebraska. Also, in 2013 trial court in Colorado dismissed a wrongful death claim for the death of a fetus, and the state's supreme court denied review. (the links are to my posts at the time the cases were reported).
I wrote a short comment on the issue back in 2015 here and again in 2021 here.
One can say that once the court took the position that there is a right to a wrongful death claim for the death of an unviable fetus, the view of the court is that life begins at conception. But then the question becomes what constitutes "conception"? And that is where the question of the distinction between a fetus, a fertilized egg, a frozen embryo and an implanted embryo becomes important. I have not seen commentary about that, other than in a short article here. This is the only comment I have seen that makes the important distinction between cases that involve recognizing a cause of action for the wrongful death of a fetus and the recent case related to an frozen embryo:
Embryos don’t just automatically turn into kids. IVF families can go through multiple implants in an effort to get a child. And for this reason, clinics try to successfully fertilize a number of eggs in case of failure. That creates a bunch of embryos that won’t end up being implanted and that probably wouldn’t result in a child even if they were. Without the freedom to get rid of those cells after the fact, IVF is an untenable industry.
This case, by itself, doesn’t get that far. Families who consent to ending the process aren’t going to sue. But the court didn’t limit itself to giving the plaintiffs a cause of action, and instead went on a tear laying the groundwork to expand the state’s criminal laws to not only shut down IVF, but to greenlight the next prosecutor who wants to charge women with murder for having a miscarriage.
You can read the Alabama Court's opinion here. To read more commentary about the decision, you can go to the links below.
Why the Alabama Supreme Court’s ruling on embryos matters
NPR (4 minute audio)
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