Alabama Passes Law Protecting IVF Clinics from Liability

Reacting to the recent Alabama Supreme Court decision holding that the state's wrongful death statute applies to the negligent destruction of frozen embryos created during IVF treatment, the Alabama legislature yesterday passed, and Governor Kay Ivey immediately signed SB159 (full text) which provides in part:

Related to in vitro fertilization and notwithstanding any provision of law ..., no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization....

... [N]o criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.

The statute explicitly has retroactive effect. NPR reports on the new law.

Alabama Supreme Court: Wrongful Death Law Covers Destruction of Frozen Embryos

In LePage v. Center for Reproductive Medicine, P.C., (AL Sup. Ct., Feb. 16, 2024), the Alabama Supreme Court held, by a vote of 7-2, that Alabama's Wrongful Death of a Minor Act covers the negligent destruction of frozen embryos created during IVF treatment and kept in a clinic's cryogenic nursery. The destruction occurred when a patient wandered into the fertility clinic, removed several embryos and then dropped them when his hands were freeze burned.  Justice Mitchell's majority opinion said in part:

[Defendants] ask us to recognize an unwritten exception for extrauterine children in the wrongful-death context because, they say, our own precedents compel that outcome....

... [Defendants and Alabama Medical Association as amicus] assert that treating extrauterine children as "children" for purposes of wrongful-death liability will "substantially increase the cost of IVF in Alabama" and could make cryogenic preservation onerous.... 

While we appreciate the defendants' concerns, these types of policy-focused arguments belong before the Legislature, not this Court.... Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified.  It applies to all children, born and unborn, without limitation.  It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.  That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding "unborn life" from legal protection.  Art. I, § 36.06, Ala. Const.

Chief Justice Parker filed a concurring opinion focusing on Art. I of the Alabama Constitution which provides that declares "it is the public policy of this state to recognize and support the sanctity of unborn life...." The Chief Justice said in part:

... [T]he theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

Justice Shaw, joined by Justice Stewart filed a concurring opinion. 

Justice Mendheim filed an opinion concurring in the result, saying in part:

In my judgment, the main opinion's view that the legal conclusion is "clear" and "black-letter law" is problematic because when the Wrongful Death of a Minor Act was first enacted in 1872, and for 100 years thereafter, IVF was not even a scientific possibility....

Ultimately ... we must be guided by the language provided in the Wrongful Death of a Minor Act and the manner in which our cases have interpreted it. Under those guideposts, today's result is correct. However, the decision undoubtedly will come as a shock in some quarters of the State. I urge the Legislature to provide more leadership in this area of the law given the numerous policy issues and serious ethical concerns at stake....

Justice Sellers filed an opinion dissenting in part, saying in part:

To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.

Justice Cook filed a 56-page dissenting opinion, saying in part:

...   I believe the main opinion overrules our recent Wrongful Death Act caselaw that requires "congruence" between the definition of "person" in Alabama's criminal-homicide statutes and the definition of "minor child" in the Wrongful Death Act.  Both the original public meaning and this recent caselaw indicate the same result here -- that the Wrongful Death Act does not address frozen embryos. 

Moreover, there are other significant reasons to be concerned about the main opinion's holding.  No court -- anywhere in the country -- has reached the conclusion the main opinion reaches. And, the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama....

1819 News reports on the decision.

[Thanks to Scott Mange for the lead.]

Tennessee AG: Abortion Ban Does Not Bar Disposal of Excess Embryos Created During IVF Process

Tennessee's Attorney General last month issued Opinion No. 22-12 (Oct. 20, 2022) clarifying that the abortion ban in Tennessee's Human Life Protection Act does not apply to the disposal of embryos which have not been transferred to a woman's uterus. Thus the law would not bar disposal of excess embryos created during the in vitro fertilization procedure. Tennessee Lookout reports on the AG's opinion. [Thanks to Scott Mange for the lead.]

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.

In Dispute Over Frozen Pre-Embryos, Wife's Religious Concerns Do Not Prevail

In In re Marriage of Olsen,(CO App., June 23, 2022), a Colorado state appellate court was called on to settle a dispute between a husband and wife over the disposition of their cryogenically frozen pre-embryos after their divorce. The wife wanted to donate the pre-embryos, now held by a fertility clinic, for implantation to another couple because of her religious belief that they are human lives. The husband wanted to destroy the pre-embryos to avoid procreation. A 2018 Colorado Supreme Court (In re Marriage of Rooks) in a somewhat similar case called for the balancing of various factors. Applying this precedent, the Court of Appeals awarded the pre-embryos to the husband, saying in part:

The district court erred by considering wife’s religious belief that the pre-embryos are human lives when weighting the first Rooks factor — the intended use of the party seeking to preserve the disputed pre-embryos.... 

The first Rooks factor simply asks what the party seeking to preserve the pre-embryos intends to do with them.... Does that party seek to implant the pre-embryos to achieve genetic parenthood or does that party seek to donate them? The first factor is not concerned with why the party prefers to preserve the pre-embryos over discarding them....

Although we are sensitive to wife’s concern that awarding the pre-embryos to husband will force her to participate in their destruction against her religious beliefs, the district court can enter orders to mitigate this concern. The district court can award husband the pre-embryos and authorize him to direct their disposal. Wife need not be involved in the process.... Because the decision will belong to husband, wife will not be compelled to do anything in violation of her religious beliefs, and therefore there is no Free Exercise violation. 

European Court Upholds Italy's Ban On Donation of IVF Embryos For Scientific Research

In Parrillo v. Italy, (ECHR, Aug. 27, 2015), the European Court of Human Rights in a Grand Chamber judgment held 16-1 that Italy did not violate the European Convention on Human Rights when it banned donating for scientific research unimplanted embryos created in carrying out in vitro fertilization. The Court's accompanying press release summarizes the majority opinion:

For the first time, the Court was called upon to rule on the question whether the “right to respect for private life” could encompass the right to make use of embryos obtained from IVF for the purposes of donating them to scientific research. The “family life” aspect of Article 8 was not in issue here, since Ms Parrillo had chosen not to go ahead with a pregnancy with the embryos in question.

The Court, noting that the embryos obtained through IVF contained the genetic material of the person in question and accordingly represented a constituent part of his or her identity, concluded that Ms Parrillo’s ability to exercise a choice regarding the fate of her embryos concerned an intimate aspect of her personal life and accordingly related to her right to self-determination. The Court also took into account the importance attached by the domestic legal system to the freedom of choice of parents regarding the fate of embryos not destined for implantation. It therefore concluded that Article 8 was applicable in this case.....

The Court concluded that Italy had not overstepped the wide margin of appreciation enjoyed by it in this case and that the ban in question had been “necessary in a democratic society”. In consequence, there had been no violation of Article 8.

Six separate partly or fully concurring and dissenting opinions were also filed. As reported by the Times of Malta, a partly dissenting opinion of 5 judges said in part:

 Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity—biological or otherwise. Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.