Alabama Supreme Court Rules Frozen Embryos Are ‘Children’ In Chilling Legal First

The Alabama Supreme Court ruled on Friday that frozen embryos are “children,” and three couples who accused medical facilities in Mobile of accidentally destroying of their embryos have grounds to sue for “wrongful death.”

The ruling, which reverses a lower court’s dismissal of the couples’ lawsuit, cites Section 36.06 in the Alabama Constitution, which asserts that each person is made in God’s image: “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,” Supreme Court Justice Jay Mitchell wrote in his opinion.

The Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” Mitchell wrote, calling the law “sweeping and unqualified.” He continued: “It applies to all children, born and unborn, without limitation.” Chief Justice Tom Parker also directly cited Biblical scripture in his concurring opinion.

The opinion also cited previous Alabama Supreme Court rulings from 2012 and 2013, which determined that child endangerment laws can be applied to fetuses, thus criminalizing pregnant women for substance use. This latest ruling—that frozen embryos are “children”—is about “expanding” those decisions as “part of the same agenda to control and criminalize pregnant people,” Pregnancy Justice Deputy Director Dana Sussman told Jezebel. Legal experts, advocates, and health care workers have long expressed concern about the ripple effects of reversing Roe v. Wade—including for IVF and fertility treatments, and the safety of pregnant people, whose rights are innately at odds with embryos being deemed human beings. “What this ruling does is make a lot of theoretical conversations become reality,” Sussman said.

The state Supreme Court ruling comes after three couples sued The Center for Reproductive Medicine, a fertility clinic in Alabama, and Mobile Infirmary Medical Center, where the embryos were being stored, in 2021 over the accidental destruction of their embryos. The suit, which accuses the defendants of wrongful death, negligence, and breach of contract, claims that Mobile Infirmary allowed a patient to “access the cryogenic storage area” where frozen embryos were being kept. Using language that disturbingly ascribes personhood to the embryos, one of the couples’ lawsuits states that this patient accidentally dropped “the cryopreserved embryonic human beings on the floor, where they began to slowly die.”

Last fall, the Medical Association of the State of Alabama filed a brief in this case, warning that recognizing frozen embryos as “children” could have disastrous implications for IVF, in which unused embryos are routinely discarded and destroyed. “The potential detrimental impact on IVF treatment in Alabama cannot be overstated,” the group said. “The increased exposure to wrongful death liability as advocated by the Appellants would—at best—substantially increase the costs associated with IVF. More ominously, the increased risk of legal exposure might result in Alabama’s fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine.”

The sentiment behind this ruling is not isolated to Alabama. Lawmakers in several states introduced legislation last year to recognize the “unlawful destruction of a fertilized embryo” as a crime, or to allow people to sue for loss of an embryo, which experts warned could be weaponized against IVF. And in a statement shared with Jezebel, Barbara Collura, CEO of RESOLVE: The National Infertility Association, noted that the Alabama court’s decision will have “profound implications far beyond Alabama’s borders.”

The effects of the ruling will also extend beyond IVF: If a fetus or embryo is considered a person, the government legally holds control over reproduction; pregnancy outcomes like miscarriage or self-managed abortion become subject to even greater state scrutiny (or criminalization). Considering embryos as “children” will also render health care providers, pregnant people, and women involved in abusive situations “more vulnerable to legal trouble,” Sussman said. As Jezebel has previously explored, there have been custody battles and legal conflicts over frozen embryos since at least 2000. Courts in Massachusetts, Pennsylvania, Illinois, California, and Arizona have all ruled on cases involving couples suing each other over what to do with frozen embryos. Sofia Vergara’s ex famously sued her over their unused embryos as part of a years-long, unsuccessful legal battle to make Vergara a biological parent of his kids against her will. And in 2018, Arizona lawmakers passed a bill requiring that, in cases of disputed embryos, the embryos should be awarded to the party that’s most likely to make them “develop to birth.” When embryos are people, women face the risk of being forced to parent with ex-partners or remain entangled with past abusers “indefinitely,” Sussman said.

Meanwhile, in Arizona, a man is suing a clinic on behalf of the estate of his ex’s aborted embryo. “Perversions of the law like that case are ushered in by rulings” like Friday’s, Sussman said. Until now, many of the conversations about the implications of reversing Roe and establishing fetal personhood “have been somewhat hypothetical,” she said, but the Alabama ruling shows where we’re heading: “an expansion of what it means for life to begin at conception that will be weaponized against providers [and] ex-partners.”