A legal one-off or the ‘next frontier’? What will determine if Alabama’s IVF ruling comes to other states

The ruling by Alabama’s state Supreme Court on IVF has set off alarm bells across the country that the issue may be swept up in the war over abortion rights unleashed by the US Supreme Court 2022 Roe v. Wade reversal.

Almost every state has a version of a so-called wrongful death statute, the basis of the Alabama court ruling that has undermined access to fertility treatments in the state. And the 2022 dismantling of Roe, which protected abortion rights nationwide, has hyper-charged the push behind “fetal personhood” measures that seek to treat fetuses or even embryos as humans in the eyes of the law.

A number of factors, however, will shape whether the Alabama ruling will be just a one-off legal episode or a bellwether for how fertility treatments could be jeopardized by the battle over reproductive rights.

“If you’re trying pinpoint how many states this could happen in, you’re looking at not just at the wrongful death laws,” said Mary Ziegler, a law professor at the University of California, Davis, “but the composition of the state supreme court, whether there’s personhood language in other parts of the state law or constitution, or whether a judge could interpret it that way.”

The Alabama high court’s ruling, handed down on February 16, said that embryos outside of the uterus were included in the definition of “minor children” in the state’s decades-old wrongful death statute. That means that fertility clinics could face civil damages under the statute for the destruction of embryonic materials in certain circumstances.

The Alabama ruling has prompted several fertility clinics in the state to pause their services, as they assess the legal exposure the state court has created for them. Amid a political backlash, some anti-abortion activists have defended the IVF ruling while downplaying the possibility that similar rulings will pop up in other parts of the country, absent additional new measures passed by lawmakers.

“Alabama law has uniquely evolved over the last decade, and I don’t know of any state that might reach a similar decision at this time,” said Clarke Forsythe, senior counsel at the anti-abortion organization, Americans United for Life. “This is probably left to the legislatures.”

However, reproductive rights advocates fear that in any law that’s ambiguous about the legal rights of embryos lies a threat that those laws can be weaponized against fertility treatments.

“Potentially, any of these broad laws could be interpreted to apply to IVF, it just depends on how far the state wants to go,” said Lourdes Rivera, the president of Pregnancy Justice, which defends pregnant people who face prosecutions related to their pregnancies. “It is something that we need to be vigilant about, because this is the next frontier.”

The Alabama Supreme Court was considering a case brought by IVF-seeking parents whose embryos were destroyed by a hospital patient who was able to enter the cryogenic nursery where the embryos were being stored. The majority opinion pointed to a previous state Supreme Court ruling that said “unborn children” were covered in Alabama’s Wrongful Death of a Minor Act. The latest ruling said that “unborn children” applied even to embryos that had not been implanted in the uterus.

Some observers say that the decisions made by a handful Alabama clinics to pause treatments have been an overreaction, as the case was not focused on embryos that were discarded as part of the typical fertility process. The court’s opinion also distinguished its approach to the civil wrongful death law from how persons are defined in Alabama’s criminal code.

But other legal experts noted that health care providers tend to be risk averse, particularly in the wake of the reversal of Roe v. Wade.

“Even without the criminal threat, the civil threat is really substantial,” Rutgers Law School Dean and professor Kimberly Mutcherson said.

Though it had been predicted that overturning Roe could put IVF in legal crosshairs, the Alabama ruling depended on a wrongful death statute that had long predated Roe’s demise.

Wrongful death statutes – which allow family members to seek civil damages for the death of a relative – are on the books in nearly every state, and all but six states, according to a recent analysis by the Florida legislature, allow for wrongful death lawsuits to be brought on behalf of unborn children. Though more than a dozen other states join Alabama in defining unborn children from the moment of conception, several of those states include language in their statutes that appear to exempt the IVF process from wrongful death lawsuits brought on behalf of embryos or fetuses.

Still other states’ wrongful death statutes lack any such carveout, leaving the possibility that embryos that expire in the course of fertility treatments could be treated like humans for the purpose of wrongful death lawsuit.

“It really is going to be determined by each state’s exact wording, and you are dealing with multiple sections of law in one state,” said Texas Right to Life president John Seago, while pointing to language in Texas’ code that seeks to insulate fertility treatments from its anti-abortion laws and wrongful death statutes.

Alabama lawmakers advanced measures to protect IVF providers last week as they race to get fertility clinics back up and running.

A Florida bill that would have extended its wrongful death law to unborn children has stalled amid the controversy around the Alabama ruling, even as the measure rested on language defining unborn children as being “carried in the womb.” There are bills in Indiana and Iowa’s legislatures tweaking their wrongful death statutes to apply to unborn child that lack language exempting assisted reproductive technology, while many other states have fetal homicide bills that have been introduced this year, according to Guttmacher Institute, a think tank that favors abortion rights.

To come to the conclusion that “extrauterine children” were covered by Alabama’s wrongful death statute, the state Supreme Court also pointed to a constitutional amendment approved by the state’s voters in 2018. The amendment said that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

“You could definitely see individual judges making these kind of arguments in other states, which have any kind of wrongful death-type of statute,” said Seema Mohapatra, a professor in health law at the Southern Methodist University School of Law.

The 2018 Alabama amendment is far less explicit than the so-called “personhood measures” that have been proposed by anti-abortion lawmakers and that seek to extend the legal protections in a state’s code to fetuses, and sometimes even embryos from the moment of fertilization. As personhood measures are adopted, they could bolster treating embryos as people in both criminal prosecutions and in the civil context, and some judges may even reach a conclusion like the Alabama ruling without an explicit personhood measure in the state’s law.

There are personhood laws already on the books in four states, according to the Center for Reproductive Rights, an abortion rights advocacy organization that has obtained a temporary court order blocking a personhood measure in Arizona. Personhood proposals have been introduced in more than a dozen states. A West Virginia proposal explicitly exempts IVF, but the rest do not address fertility treatments and their language varies in defining the start of human life.

The Alabama ruling has added to the scrutiny of a US bill supported by many Republicans in Congress that would establish that “human beings” include human being” to include “all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”

House Republicans are now circulating a resolution supporting IVF. It is non-binding and largely symbolic.

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