The Alabama Supreme Court, on February 16, pronounced that frozen fertilized human embryos can be viewed as children, reigniting debates and discussions around reproductive rights following the recent upheaval of a woman’s Constitutional right to an abortion by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization.
It is essential to parse the decision taken by the Alabama Supreme Court. Although it possibly provides material to erode some judgements surrounding fertility, the roots of this decision have nothing to do with Dobbs or the US Constitution. The legal foundation for the LePage verdict was already established for years, much before the political environment around women’s rights began its transformation after Dobbs.
In LePage v. Center for Reproductive Medicine, an Alabama law, the Wrongful Death of a Minor Act was violated by the clinic’s failure to safeguard frozen embryos from destruction. The 1872 law permits parents of a deceased child to recover punitive damages for their child’s death.
Although the Alabama Supreme Court did not ascertain under the US Constitution that embryos are persons, this conclusion was arrived at by the state legislature, a decision within their jurisdiction that was plausible even during the time of Roe.
The implications of the LePage decision are wide-ranging. The Alabama Supreme Court predicated the decision entirely on state law, making it unappealable to the US Supreme Court. More so, this was not a case about abortion, instead, it was an attempt to protect reproductive rights.
However, in a post-Dobbs world, the potential for a father of an embryo to leverage this ruling to sue a woman who destroys it is a worrisome possibility. Moreover, it uncovers a plethora of ways in which states can intrusively regulate more aspects of women’s reproduction under the pretence of protecting a human life.
The LePage judgement has raised questions about the rights, and potential inheritance, of fertilized embryos. Essential debates about the reconciliation of reproductive technologies and practices with rights in a world where the extent of a state’s freedom to act is undetermined have been stirred up by this case.
The case in question is LePage v. Ctr. for Reprod. Med., P.C., Ala., No. SC-2022-0515, 2/16/24.