On February 16, 2024, the Supreme Court of Alabama (“the Court”) published a decision in LePage v. Center for Reproductive Medicine (“LePage“), holding that frozen embryos are considered children under Alabama’s Wrongful Death of a Minor Act (the “Act”), which provides parents with a private right of action against any person whose wrongful act, omission or negligence caused the death of their child.
Overview
The Act, which was originally enacted in 1872, allows the parents of a deceased child to recover punitive damages from a person whose wrongful act, omission or negligence caused the death of a child, provided that the parents raise such a claim within six months of the child’s death. Neither “minor” nor “child” is defined by the Act but, in recent decades, Alabama courts have interpreted the Act to include “unborn child[ren] . . . regardless of . . . viability or stage of development.”
The plaintiffs in LePage are three different couples who underwent fertility treatments at the Center for Reproductive Medicine (the “Clinic”). Each couple’s fertility treatment resulted in several embryos, some of which were stored by the Clinic in a local hospital building. In December 2020, a patient of the hospital entered the Clinic’s storage space and removed and dropped several embryos, including those belonging to the plaintiffs. The embryos were destroyed. The plaintiffs brought suit against the Clinic under the Act (among other legal theories).
In its decision, the Court further extended the definition of “child” under the Act to include all embryos and pre-embryos, beginning at fertilization, regardless of whether the embryo is or has ever been in utero. Thus, IVF patients in Alabama may now pursue civil wrongful death claims against their fertility treatment providers when pre-embryos or embryos are intentionally or accidentally destroyed.
It is important to note that the LePage decision did not determine whether a frozen embryo is a “child” under any other Alabama law, including Alabama criminal law. The Court also did not resolve potential affirmative defenses that may be raised by the fertility clinic on the basis of the contracts signed by the patient-plaintiffs, each of which allowed for the eventual destruction of embryos that were not implanted. The Court did, however, state that the trial court would be free to consider any such defenses on remand.
Risk Landscape
Alabama
In the immediate wake of the LePage decision, a number of reproductive health care providers and facilities in Alabama have halted or restricted IVF services, some shipping companies that specialize in transporting embryos have ceased transportation of embryos into or out of Alabama, and providers and patients have been left with more questions than answers. While a flurry of legislation aimed at protecting access to IVF services has been proposed at both the state and federal level, it is not yet clear how the many issues raised by this decision will be resolved.
In Alabama, it is now possible for fertility patients to bring claims under the Act against IVF clinics based on the destruction—whether intentional or accidental—of embryos. Because the Act allows for the collection of punitive damages, for which there is no limit under Alabama law, damages may be substantially higher than those that would be awarded in a traditional malpractice case. While Alabama law allows for insurance coverage of punitive damages, such damages could go well beyond the coverage of currently-held insurance policies.
Other States
While Alabama is the first state to determine that embryos formed via reproductive technology are “children” under state law, it is unlikely to be the last. Several other states have adopted constitutional or statutory protections beginning at fertilization (such provisions are sometimes called “fetal personhood” laws), which could be interpreted to include extrauterine embryos, leading to civil or criminal liability resulting from the destruction of embryos. Additionally, since the Supreme Court of the United States’s decision in Dobbs v. Jackson Women’s Health (which we discussed here), over a dozen states have prohibited abortion beginning at fertilization. Although some of these statutes explicitly carve out IVF and other reproductive technologies, others do not, which further complicates the regulatory environment.
It is important to note that the Court’s decision does not extend to criminal law, because the particular language of Alabama’s homicide statute specifically refers to fetuses “in utero.” In other states, the application of Alabama’s IVF rationale could open the door to criminal liability. Additionally, some state wrongful death and abortion statutes already carve out exceptions for embryos created via IVF treatment. Determining the potential risk under similar rulings in other states, including in other states with constitutional or statutory provisions defining “life” as beginning at fertilization, will require an analysis of the interplay amongst the state’s definition of when human life begins, the specific language and exceptions in the state’s equivalent to Alabama’s Wrongful Death of a Minor Act and the language and caselaw defining the state’s homicide statutes.
Practical Takeaways
- IVF providers should carefully review patient contract templates, particularly focusing on the options for disposition of un-implanted embryos.
- IVF providers in states that have fetal personhood laws and/or that prohibit abortion beginning at fertilization should carefully review such laws to gain insight into the potential impact of such laws on fertility treatments.
- IVF providers in Alabama and other fetal personhood states may further calculate and mitigate risk by considering the following actions:
- Ensuring that the current policies and procedures are appropriate to best ensure the security of pre-embryos and embryos at every stage of development, storage and transfer.
- Reviewing insurance policies to determine whether coverage limits may impede recovery for wrongful death causes of action.
- Reducing the number of embryos created relative to each potential pregnancy, in order to reduce overall storage burden and the associated risk.
- Reviewing policies related to genetic testing in the context of IVF, to ensure alignment with state law governing abortion, as the same may apply to the destruction of embryos (for example, some states prohibit abortions for the reason of sex selection or genetic anomaly).
If you have questions regarding LePage v. Center for Reproductive Medicine or the regulatory environment for fertility treatments in specific states, please contact:
- David Honig at (317) 977-1447 or dhonig@hallrender.com;
- Jennifer Skeels at (317) 977-1497 or jskeels@hallrender.com;
- Julie Lappas at (317) 977-1490 or jlappas@hallrender.com;
- Caitlin Bell-Butterfield at (919) 228-2408 or cbell-butterfield@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
