On February 16, the Alabama Supreme Court rendered its verdict in LePage v. The Center for Reproductive Medicine. The litigation was initiated by three families against a fertility service provider following the inadvertent destruction of their embryos. This case is notable not only for the typical allegations of negligence but also for the plaintiffs’ inclusion of wrongful death claims for the embryos. These claims required the court to determine if embryos, referred to as “extrauterine children” by the court, are considered children under Alabama’s Wrongful Death of a Minor Act (the “Act”). The court, drawing on statutory interpretation, Alabama’s public policy as reflected in amendments to the state Constitution approved by voters, and references to scripture and Christian theologians, concluded that the embryos qualify as children, thereby allowing their destruction to be adjudicated as wrongful death under the Act.

This lawsuit originated from a 2020 event in which a hospital patient unauthorizedly accessed the clinic’s cryogenic nursery and attempted to remove several embryos. The attempt led to the patient dropping the embryos due to the subzero temperatures, resulting in their destruction. Three couples, whose embryos were lost, filed lawsuits against the fertility clinic for wrongful death of a minor. Initially, a trial court dismissed these claims, asserting that cryopreserved embryos did not meet the Act’s statutory definition of a “minor child,” a law enacted in 1872. However, the Alabama Supreme Court reversed this decision, with a dissenting opinion from one justice. The court’s majority, along with several concurring opinions, underscored that the Act encompasses all born and unborn children without exemption for embryos outside the uterus. While the majority opinion primarily focused on the Act’s statutory language, other opinions emphasized the significance of Alabama’s Constitution. In 2018, Alabama voters ratified an amendment stating the state’s recognition and support for the sanctity and rights of unborn life. Some justices also referenced the Old Testament/Hebrew Bible and Christian theologians to support their interpretation of Alabama citizens’ intent with this constitutional amendment. The dissenting justice, while partially agreeing that the embryos constituted lives warranting protection, argued that the court exceeded its jurisdiction by applying the Act, originally drafted in 1872 before the existence of in vitro fertilization (IVF) and extrauterine embryos, to this case. This justice also noted the absence of similar interpretations in other states and expressed concerns about the impact on individuals desiring to become parents.

The ruling may cause significant disruption within the fertility industry, potentially affecting fertility patients not only in Alabama but also those from other states, such as Georgia, who may seek fertility treatments in Alabama. The decision implies that the non-routine disposal of unused embryos could necessitate more frequent and smaller egg retrievals. Fertility service providers might need to modify treatment protocols and allocate more resources to mitigate common business risks like equipment or power failures. Additionally, if the unintentional loss of an embryo is classified as wrongful death rather than property loss, this could lead to higher insurance and liability expenses. Patients may encounter increased costs for additional cycles and storage of frozen embryos, potentially indefinitely. Health insurers covering fertility treatments may face higher reimbursements and, consequently, premium costs. Following the court’s decision, several fertility providers in Alabama have paused IVF operations, prompting a bipartisan legislative effort to enact clarifying laws safeguarding IVF treatments. This development also reignites discussions about the federal Access to Family Building Act and efforts in states like California to enhance health insurance coverage for assisted reproductive technology (ART).

The implications of the LePage verdict extend beyond Alabama, potentially influencing legislation and judicial interpretations in other states, such as Georgia. It underscores the need for wrongful death attorneys, like an Albany, GA wrongful death attorney, to navigate these complex legal landscapes, especially for families and fertility clinics navigating the repercussions of such rulings. Legal experts specializing in wrongful death and reproductive rights will be crucial in advising clients on these evolving legal standards, representing affected families, and guiding fertility clinics through compliance with new legal precedents. As states may follow Alabama’s lead, the expertise of wrongful death attorneys becomes indispensable in addressing these intricate legal matters.