#539: The Alabama Embryo Ruling

What the state's ruling means for the future of fertility.

The Alabama Supreme Court has made waves by ruling that embryos being stored in fertility clinics are children. As such, those clinics can be held responsible for their deaths. The case was initiated by a number of families who lost their embryos when someone wandered into the “cryogenic nursery” and removed several embryos, which he dropped because they were too cold. 

The ruling has set off shock waves because it seems to confirm progressives’ predictions after Dobbs that the ruling would embolden social conservatives to seek to eliminate in vitro fertilization in addition to abortion. The National Infertility Association underscored that message in response to Alabama’s ruling, suggesting that the ruling would have “profound implications far beyond Alabama’s borders.” 

While that is likely true, the majority opinion only appeals to Alabama state law. It explicitly declines to invoke the 14th Amendment or the normative questions of the ethical treatment of extra-uterine embryos. It offers little by way of philosophical discussion about the moral status of the embryo, instead focusing almost exclusively on whether there is an unwritten “exception” to Alabama’s Wrongful Death of a Minor Act (enacted in 1872), the statute on which the ruling was made. The narrowness of the focus entails that the Court only has to answer one question: does location make a difference to the understanding of “child,” or does it not? Alabama had ruled previously that embryos were unborn children before, so it simply extended the precedent to these cases.

It will not surprise (you) readers of this newsletter to learn I have no objection to the ruling as such: embryos are persons, and the fertility industry is shockingly under-regulated. Some people have quipped that fertility clinics in the U.S. have fewer regulations than hair salons, which is not obviously false. Increasing scrutiny on such an industry seems entirely warranted. Moreover, the opinion goes out of its way to specify that criminal law does not track civil law. So, while this is a ‘wrongful death’ lawsuit, it is not necessarily the case that mishandling embryos might open a fertility clinic up to charges of murder or manslaughter.