An appeal considered by the Alabama Supreme Court has questioned why the accidental destruction of embryos does not constitute wrongful death.
Oral arguments were heard by the Court on 19 September 2023, against a decision made by an Alabama judge in 2022. This case was brought by couples who tried to sue the Centre for Reproductive Medicine at the Mobile Infirmary Medical Centre in Mobile, Alabama for wrongful death and negligence when their embryos were accidentally destroyed by a patient who gained unauthorised access to embryo storage areas. Three couples whose frozen embryos were destroyed in the incident, are appealing the decision and state that Alabama's constitution '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.'
Representing the Infirmary, attorney Christian Hines told the Alabama Supreme Court in a special argument session that IVF embryos have deliberately been excluded from state legislation: 'When it came time to defining protections, [the Legislature] defines unborn infant as 'a human being in utero at any stage of development, regardless of viability. So there is nothing in there about cryopreserved embryos that are not developing outside the uterus.'
The claim was originally dismissed in 2022 on the basis of the wording in Alabama's Wrongful Death Act, as well as limits on damages for emotional harm.
Attorney for the plaintiffs, Dave Wirtes, acknowledged that although Alabama's laws protect unborn children, fetuses and embryos in utero, this may not extend to in vitro embryos. He argued, however, the claim was wrong to be dismissed by the Circuit Court, as even if the wrongful death claim did not stand, the negligence claims should.
The Medical Association of the State of Alabama released a brief outlining how the appellant's position could affect IVF treatment in the state, with the threat of wrongful death liability forcing clinics to increase costs or introducing the threat of medical professionals leaving to practice medicine in other states. It also stated that forcing all unused embryos to be stored following treatment indefinitely would ultimately raise costs for patients.
Alabama has some of the most strict anti-abortion laws in the USA. A law introduced in the state in 2019 had attempted to ban abortion there, but an injunction against it existed due to the 1973 Roe v Wade ruling that that unduly restrictive state regulation of abortion was unconstitutional in the USA. When the US Supreme Court's decided to reverse the Roe v Wade abortion law in June 2022, abortion became illegal in the state, and residents were restricted from travelling outside of the state to access the procedure except under very limited medical circumstances.
Sources and References
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Alabama Supreme Court In Special Session at the University of South Alabama
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Oral Arguments
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Alabama Supreme Court considering whether dropping frozen embryos on the floor of an IVF clinic is a 'wrongful death'
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Case before Alabama Supreme Court could shut down fertility clinics, medical group warns
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Alabama Supreme Court considers fundamental question: What is life?
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