The court ruled that Alabama’s Wrongful Death of a Minor Act, which was enacted in 1872, long before artificial reproductive technology — let alone frozen embryos — were a gleam in anyone’s eye, applies to “all unborn children, regardless of their location.”
Opinion Columnist
Robin Abcarian
The ruling is, in a word, preposterous. And I’m not the only one who thinks so. As one of the Alabama justices put it, in a partial dissent: “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.”
What, exactly, is a frozen embryo? It’s a tiny blob of undifferentiated cells. Some fertility centers freeze them one day after fertilization and some wait five or six days until they become blastocysts, which may be 200- to 300-cell organisms. By any normal definition, these blobs are not “children,” even though that is how the Alabama Supreme Court justices described them throughout in their opinions and concurrences.
The justices also cited Alabama’s Sanctity of Unborn Life Act, a constitutional amendment passed overwhelmingly by the state’s voters in 2018. Voters correctly anticipated that the U.S. Supreme Court would soon overturn Roe vs. Wade and allow states to ban abortion. When the Supreme Court ruled on the Dobbs case in 2022, Alabama immediately criminalized abortion, with no exception for rape or incest. Today, no abortion clinics operate in the state.
The case at hand involves three couples who brought a civil lawsuit against a Mobile, Ala., fertility clinic, the Center for Reproductive Medicine, after their embryos were accidentally destroyed in December 2020 by one of the clinic’s patients. How that came about is almost as hard to believe as the court’s decision.
According to court records, a patient “managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand causing the patient to drop the embryos on the floor, killing them.”
At this point, you are probably wondering, as was I, why has this errant patient not been arrested and charged with involuntary manslaughter? I mean, if a frozen embryo is a legally protected minor child, and all unborn life is sacred, then why on earth would the state of Alabama allow this accidental killer to stay on the loose?
In his ruling for the majority, Justice Jay Mitchell mentioned that issue but did not opine on it. He merely acknowledged that in oral arguments, the fertility center defendants argued that “individuals cannot be convicted of criminal homicide for causing the death of extrauterine embryos,” but since the center had not raised such issues in the lower court, “we will not attempt to resolve them here.”
Another absurd contradiction in this case: All three families — the Fondes, the LePages and the Aysennes — signed contracts with the fertility center with instructions about how their frozen embryos should be handled. “Their embryonic children,” wrote Mitchell, “were in many respects, treated as non-human property.”
The Fondes, he wrote, agreed to let the center “automatically destroy” embryos that remained frozen longer than five years. The LePages opted to donate unused embryos to medical research. The Aysennes agreed to allow any “ ‘abnormal embryos’ to be experimented on for ‘research’ purposes and then ‘discarded.’ ”
Can someone please explain to me how frozen embryos are legally people but can be experimented upon or discarded when they are no longer wanted? None of this makes any sense.
Many rightfully fear that in vitro fertilization, where egg and sperm meet in a petri dish before implantation in a human uterus, is going to be untenable in places such as Alabama. Fertility centers will face too much legal peril and too much uncertainty. The American Society for Reproductive Medicine denounced the ruling as “profoundly misguided and dangerous.”
The theocratic impulses of Alabama Supreme Court Chief Justice Tom Parker were fully, and frighteningly, on display in this case.
In a separate special concurrence, Parker sounded as if he were writing a sermon for “The 700 Club” instead of ruling on a question of law.
“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” wrote Parker. “[E]ven before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
To which one can only reply: Are you freaking kidding me? Where, in the mind of a judge like that, is the line that separates church and state? Where is the respect for differing religious beliefs, or no beliefs at all?
As Alabama slides toward theocracy, just remember: It is leading the way. Other states and other courts are bound to follow suit.
“You only need one state to be the first out of the gate, and then the next one will feel less radical,” Dana Sussman, deputy executive director of the legal advocacy organization Pregnancy Justice, told the Washington Post. “This is a cause of great concern for anyone that cares about people’s reproductive rights and abortion care.”