On 16 February 2024 the Alabama Supreme Court released its decision in LePage et al v The Center for Reproductive Medicine, PC et al holding that the Alabama Wrongful Death of a Minor Act 'applies to all unborn children, regardless of their location', including IVF-produced embryos (see BioNews 1228). In essence, the Court declared that IVF-produced embryos are 'unborn children' for the purposes of the Wrongful Death of a Minor Act. The Court's ruling prompted swift condemnation from the US IVF community: the American Society for Reproductive Medicine referred to the decision as 'profoundly misguided and dangerous', and RESOLVE, a US-based patient-advocacy association, called the decision 'a terrifying development'.
It is prudent, however, to put the LePage decision in proper context.
First, this decision was rendered by the Justices of Alabama's highest court, all of whom had been either directly elected by the voters, or appointed by the Alabama governor, who, in turn, had been directly elected to that post by the Alabama voters. In addition, the decision was based, in part, on the Court's interpretation of the Alabama Constitution, which was amended as recently as 2022. Under Section 36.06 of Article I of the current Alabama Constitution, it is the 'public policy' of Alabama to a. 'recognise and support the sanctity of unborn life and the rights of unborn children, including the right to life' and b. 'ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate'.
As the Preamble to the Alabama Constitution unambiguously states, it was 'ordained and established' by the 'People of the State of Alabama' 'in order to establish justice, ensure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity, invoking the favour and guidance of Almighty God'. As might be expected of a democratic society, the Alabama Constitution was adopted through direct voting by the Alabama voters: on 8 November 2022, almost 77 percent of Alabama voters approved the current language of their Constitution. Thus, as ironic as it may sound, the LePage decision is a product of a democratic process, whereby Alabama voters elected their Supreme Court Justices to interpret Alabama state laws consistent with the free will of the voters as they have 'ordained' in their Constitution.
Secondly, the LePage decision is the Court's narrow interpretation of one - and only one - Alabama state law provision: the so-called 'Wrongful Death of a Minor Act', which is codified in the Alabama Civil Practice Code. In other words, the decision does not amend any provisions of any other Alabama state law, such as the Criminal Code. Of note, the Alabama Criminal Code does not define the term 'child', but defines the term 'person' as 'a human being, including an unborn child in utero at any stage of development, regardless of viability'. What this means, in my opinion, is that the decision by the Alabama Supreme Court has moved civil, professional liability of Alabama IVF providers closer to that of the obstetricians-gynaecologists, while leaving their criminal liability - to the extent that existed at all - unchanged.
Third, as a matter of state law, the decision by the Alabama Supreme Court has not banned IVF treatments, or restricted them in any way, or placed any legal requirements on the continued provision of IVF services in Alabama. To paraphrase the Alabama Supreme Court's Justice Stevens, it simply provided a legal 'method of obtaining punitive damages under Alabama's Wrongful Death of a Minor Act … by concluding that frozen embryos, negligently destroyed, are entitled to the same protections as a fetus inside a mother's womb'. In essence, the decision resolved one, narrow question of law: whether an Alabama IVF patient may pursue a civil claim for money damages for the loss of an IVF-produced embryo pursuant to one specific provision of the Alabama Civil Practice Code. The decision did not amend any one of the numerous definitions of the term 'child' found in various sections of the Alabama Code.
The subsequent questions – whether defendants were even liable to plaintiffs, and to what extent – were not before the Alabama Supreme Court. Barring a quick settlement between the LePage litigants, it is expected that these questions will be decided by the trial court, where the case has been remanded for further proceedings.
Finally, the LePage decision highlights the fundamental importance of competent, consistent, and, more importantly, timely advocacy in favour of a legal framework that is clear, predictable and based on reality and logic. Establishing and maintaining such a framework will help assuage the fear and panic among IVF providers and patients. In the absence of such framework, patients would ultimately pay the price, directly or indirectly, because IVF practitioners would constantly look over their shoulders and ponder whether they might be required to register as child-care facilities, or could be criminally charged for murder if they discarded an abnormal or a non-viable embryo, or may be required to report certain patients to law enforcement on the ground that those patients have 'abandoned' their cryopreserved embryos by not paying for their continued storage.
As of today, the Alabama Legislature is considering two relevant bills that were introduced shortly after the release of the LePage decision. Specifically, House Bill HB225 'would provide that any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law'. In addition, House Bill HB240 seeks to amend the Alabama Constitution to 'to provide that an extrauterine embryo is not an "unborn life" or "unborn child"'. If these efforts are successful, and the final legislation will be applied retroactively, then the decision of the Alabama Supreme Court will likely lose its legal effect and remain an exercise in linguistic gymnastics and logical contortions.
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