ANALYSIS: IVF Ruling Reveals Legal Limbo for Embryos

The Alabama Supreme Court’s February ruling that frozen embryos are children demonstrates the unsettled state of the assisted reproductive technology space (ART) in the US. The status of embryos under the law is unclear in most states, and litigation against in vitro fertilization providers will leave them navigating a Wild West over the legality of the treatment.

In the Alabama case, the state high court found that the parents of embryos that were accidentally destroyed while being stored can seek relief under the state’s Wrongful Death of a Minor Act because “extrauterine children” fall within the act’s definition of “minor children.”

Without definitions and guidance from state legislatures, courts have free range to create definitions for terms like “children” and “minors.” That has led to turmoil and confusion in the IVF industry—some IVF clinics in Alabama paused treatments after the ruling—particularly over when an IVF provider can be held liable for its handling of embryos.

Although legal recourse exists for patients whose embryos are lost or destroyed, embryos don’t fit into the preexisting legal categories of “person” or “property,” sparking uncertainty over whether providers can even still perform IVF.

The ultimate solution may be legislation to carve out a new, special category that creates a cause of action and categorization for destroyed embryos, allowing the law to keep up with the science in reproductive health care.

Children in Wrongful Death

Like Alabama, most states have either specific wrongful death of a child or minor statutes, or more general wrongful death statutes. The problem presented by the Alabama case, LePage v. Center for Reproductive Medicine, and that applies to other states, is that the definition for “child” or “minor” in these statutes often doesn’t specifically address embryos being used or stored for IVF. Without more specificity, courts have wide leverage to interpret the definitions in many ways.

For example, the court in LePage interpreted “minor child” as used in the act to include extrauterine embryos. This has inevitably led to questions and uncertainty around IVF in the larger context in Alabama.

Further, Alabama’s law doesn’t define “minor child.” The court relied on another case, which found that “an unborn child qualifies as a ‘minor child’ under the Act, regardless of the child’s viability or stage of development.”

Indiana’s comparable law provides a more defined scope, defining a “child” to include a fetus that has attained viability. The law also clarifies that “viability” means the ability of a fetus to live outside the mother’s womb.

An Indiana court could look to the plain language of the statute to find that an embryo doesn’t fit within the definition of “viable” because it hasn’t reached the point of biological development to be able to live outside of the womb.

The undefined structure of wrongful death laws like Alabama’s doesn’t reasonably anticipate questions about whom the law applies to and the problems such wide berth will cause. A law like Indiana’s may be more suited to anticipating problems that could occur in cases involving reproductive health if “child” and “viable” aren’t defined.

New Legal Category for Embryos

Plaintiffs seeking relief like those in the LePage case may be able to avoid adding uncertainty around IVF by bringing common law claims instead of statutory.

This is what the plaintiffs in LePage did, pleading common law negligence and wantonness claims as alternatives to the statutory claims. The court found that these alternative pleadings were moot , but they could be options for plaintiffs in other cases.

However, plaintiffs ultimately could still face challenges over the legal status of embryos under common law due to their potential to grow into human beings. An amicus brief for the 2022 US Supreme Court case that overturned Roe v. Wade noted several times that the law usually treats frozen embryos as property. The legal status of embryos is unsettled because there isn’t a widely used standard for how to treat them under the law, and they don’t fit easily into the definition of “person” or “property.”

A 2016 Missouri divorce case shows a potential solution to this question. Frozen pre-embryos are “marital property of a special character,” the state court said, and found a middle ground recognizing “the principle that frozen pre-embryos are entitled to a special respect.”

This new category could be extended to other types of cases, such as negligence claims. If legislatures created this option, it would offer an avenue for plaintiffs like those in LePage to bring actions for lost or destroyed embryos without creating confusion over laws applicable to IVF.

The idea of something similar to the “marital property of a special character” for causes of action in cases like LePage is a feasible solution, but it would be a major leap forward for the law around IVF and reproductive health as a whole. Embryos exist in a category of their own that is yet undefined, and the laws as they currently exist haven’t caught up with science in the ART space.

Lack of ART Regulation

Beyond murky legal recourse for a destroyed embryo at the state level, there’s little regulation of ART. On a national level, federal health agencies take a relatively hands-off approach with ART regulation.

As a result of LePage, Congress tried to pass a bill protecting IVF that was eventually blocked. With little likelihood of substantive IVF regulation at the federal level, the baton is now in states’ hands.

Less than three weeks after the LePage ruling, Alabama did just that. Governor Kay Ivey (R) signed into law legislation that will shield IVF providers from criminal and civil liability. States such as California and New Jersey have introduced assembly resolutions condemning the Alabama decision and reaffirming IVF in their own jurisdictions.

Alabama’s law likely won’t be enough without more clarity on the legal status of embryos. LePage demonstrates that without state legislative action, courts will be left to navigate the law, leading to further confusion and disruptions in the ART industry.

Bloomberg Law subscribers can find related content on our In Focus: Abortion Law page, our Litigation Intelligence Center page, and our Toolkit: Abortion Law page.

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