Unless you’ve managed to avoid all news sources recently, you are probably aware that on February 16, 2024, the Supreme Court of Alabama ruled that embryos are “children” for purposes of plaintiffs having a viable claim under the Alabama Wrongful Death of a Minor Act. This judgement was adjudicated in the case of LePage v. Center for Reproductive Medicine where embryos were destroyed in a bizarre incident.
Some significant takeaways from this development include:
- Seeking a path through negligence cases had been significantly challenging for plaintiffs pursuing value recovery related to loss of human life which is prohibited based on Alabama’s longstanding position. In such situation, often patients experience negligent loss of their reproductive material with limited alternatives for legal redress. Dov Fox, a law professor suggests the need for a new claim, “Reproductive Negligence“.
- Despite certain misconceptions, other countries such as Australia have not completely resolved the ethical issues surrounding embryo creation and use. Legal Consultant Sarah Jefford provides insight on the reality of assisted reproductive technology practices in Australia which refute the assumption that only one embryo is created at a time.
- Given the prominence of this case, it is worth considering the likelihood of it reaching the U.S. Supreme Court. Constitutional law professor Kate Shaw suggests this may be unlikely. She discusses this case and matters of fetal personhood in a Strict Scrutiny episode.
- The impact of this ruling was immediate – fertility clinics paused treatments, citing the uncertainty and potential implications of the ruling. This decision may also have repercussions including the potential banning of embryo destruction and creation of legal and ethical dilemmas over frozen embryos.
- Ahead of this, organizations such as RESOLVE: The National Infertility Association are working to support those in need and voicing concerns to lawmakers, including during their Federal Advocacy Day. They are also supporting the Access to Family Building Act for the protection of family-building tools.
In conclusion, the Alabama ruling, while causing significant concern and uncertainty, could potentially serve as a catalyst that pushes for the solidification of protections for fertility care at the national level.