Embryo Ruling Doesn’t Rely on Federal Cases, But May Erode Them

The Alabama Supreme Court declared Feb. 16 that frozen fertilized human embryos can be considered children. Many commentators have viewed the decision as raising new possibilities to restrict reproductive rights after the US Supreme Court overturned a woman’s Constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.

But let’s be clear about what the Alabama Supreme Court’s opinion did, and what it didn’t do. This opinion likely provides fodder for chipping away at some decisions surrounding fertility, but it has nothing to do with Dobbs or the US Constitution. While the political landscape around women’s rights and their bodies has changed post-Dobbs, the legal foundation for the LePage decision has been in place for years.

In LePage v. Center for Reproductive Medicine, a clinic’s failure to secure frozen embryos from destruction constituted a violation of an Alabama law, the Wrongful Death of a Minor Act. The law was enacted in 1872 and allows parents of a deceased child to recover punitive damages for their child’s death.

The majority opinion said the state legislature hadn’t addressed whether the act covered frozen embryos and said that the language of the text, as well as their previous precedents, dictated that result. The decision allows an individual to sue a clinic which was negligent in its handling of embryos.

Clearly the individuals could have sued the clinic for some version of negligent handling of their property, but the novelty of the claim is in concluding that the embryos are children. The court didn’t declare under the US Constitution that embryos are persons.

Moreover, the Alabama Supreme Court on its own didn’t conclude unborn entities are persons; this is what the state legislature did. This decision could have occurred even while Roe was still in place. The court in Roe stated fetuses weren’t persons under the Constitution, but it didn’t preclude states from reaching that conclusion.

Even before Dobbs, many states had already created criminal statutes that penalized the killing of a fetus outside of the context of abortion.

Implications

First, it can’t be appealed to the US Supreme Court because the Alabama Supreme Court grounded its decision solely on the basis of state law.

Under cases such as Michigan v. Long and the principles of federalism, state courts are generally the final word on what their own state statutes and constitutions mean. The Supreme Court can’t second guess state courts unless one can find a violation of the US Constitution.

Here there’s no indication of that. Moreover, even if Roe were still alive, suing a clinic with the claim that an embryo was a person under Alabama law would have been possible.

Second, this wasn’t a case about abortion. If anything, it was a case trying to protect reproductive rights by requiring those who handle frozen embryos to exercise more care. Under Roe, a suit like the one in this case wouldn’t have implicated abortion rights because it wasn’t about a woman’s decision to terminate a pregnancy.

Third, and this is where the reality of the post-Dobbs world does enter, this decision potentially could be used by a father of an embryo to sue a woman who destroys it. Moreover, the holding points to how post-Dobbs a host of possibilities are open to states to seek to regulate more aspects of women’s reproduction under the guise of protecting a human life.

While decisions such as Skinner v. Oklahoma and Griswold v. Connecticut provide significant protection to many reproductive decisions, the LePage decision provides grounds to chip away at them. If this happens, then those cases may be appealable to the US Supreme Court.

Fourth, LePage does implicate concerns about how to handle fertilized embryos in the future. It raises questions about the rights of these embryos, but even before Dobbs there were cases that asked whether they had any rights, such as to inheritance.

But can clinics fertilize several eggs, and dispose of some that aren’t needed? These questions weren’t well answered before Dobbs. This is the collision course that the law was already facing before LePage and which will now accelerate. Pro-life ideology is now coming into conflict with efforts to improve fertility.

Overall, much of the LePage decision could have occurred even while Roe was still in place because the facts here didn’t implicate abortion rights.

The case looks at the reality of how reproductive technologies and practices can be reconciled with rights in a world where it’s still not clear how much freedom states have to act when it comes to issues beyond regulating abortion.

The case is LePage v. Ctr. for Reprod. Med., P.C., Ala., No. SC-2022-0515, 2/16/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David Schultz is professor of political science and legal studies at Hamline University and professor of law at University of Minnesota.

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