In Vitro Fertilization and the Law
The Alabama Supreme Court’s recent decision on in vitro fertilization (IVF), LePage v. The Center for Reproductive Medicine (Feb. 16, 2024), has generated a tsunami of synthetic hysteria that has drowned the country in misinformation. Left-wing pundits and politicians, including President Biden in his State of the Union speech, have suggested that the court’s decision made IVF technology illegal in Alabama and would influence other states to do the same. Nothing could be further from the truth.
First, the Alabama Supreme Court held only that a wrongful death action could be brought against a fertility clinic for the negligent destruction of the fertilized ova (often referred to as “frozen embryos”) of two married couples. Notwithstanding the immediate (and political) reaction of several fertility clinics in Alabama, nothing in the court’s decision made IVF technology illegal. The decision was actually a vindication of the rights of parents in the embryonic life of their children.
Second, the Alabama legislature has since passed legislation (S.B.159), which the governor has signed, making it clear that, apart from damages limited to “the price paid for the impacted in vitro cycle,” no civil action or criminal prosecution may be “brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Thus, the Alabama Supreme Court’s decision has been significantly narrowed in its scope with respect to similar claims relating to IVF technology.
Third, entirely apart from the legislature’s response, the state supreme court’s decision interpreting its wrongful death statute was an outlier in the law, unlikely to be followed by any court in any other state.
As an initial matter, unlike Alabama’s statute, most state wrongful death statutes have not been applied to non-viable unborn children and, obviously, a fertilized ovum being maintained in a cryogenic environment is not viable. Even with respect to the fifteen states that allow a wrongful death action to be brought on behalf of a non-viable unborn child, not one of those statutes (other than Alabama’s) has been interpreted to apply to the intentional or negligent destruction of fertilized ova and, given the language and history of those statutes, they could not be so applied. Indeed, when a claim similar to the one brought in Alabama was brought in Illinois, the Illinois Appellate Court rejected it, notwithstanding broad language in the state’s wrongful death statute that applied to unborn children at any stage of development or gestation (Miller v. American Infertility Group of Illinois, Inc., 2008).
It is also utterly implausible that any state criminal law recognizing the unborn child as a potential victim of homicide would be applied to IVF technology. Although almost three-fourths of the states have enacted fetal homicide statutes that protect unborn children from the criminal acts of third parties, these statutes apply only to criminal acts committed against pregnant women resulting in the death of their unborn children. By their express terms, or by fair implication, they do not apply outside the context of a pregnancy, nor do they apply to any acts of pregnant women themselves or to any medical treatment to which they have consented. And although some of these statutes have been on the books for several decades, there is not a single instance in which a criminal prosecution has been brought for the destruction of a fertilized ovum.
Finally, the notion promoted by President Biden and others that the Alabama Supreme Court’s decision directly resulted from the United States Supreme Court’s 2022 Dobbs decision overruling Roe v. Wade and returning the issue of abortion to the states, is ludicrous. Both Roe and Dobbs addressed the states’ authority to prohibit abortion, not IVF technology, which does not implicate a pregnant woman’s interest in obtaining an abortion. In sum, those who engage in IVF technology are not in any danger from either civil liability under a wrongful death statute or criminal prosecution under a fetal homicide statute.
I respectfully disagree with how viable is being defined. Perhaps Attorney Linton like so many others interpret the word viability as ability to survive outside the womb, not recognizing the culture medium that stores embryos is made up of components to mimic the womb, and acts as an artificial womb. Let us all remember that only viable embryos are vitrified or cryopreserved. In Illinois the Attorney General when IVF first started claimed they would not prosecute a doctor deciding who is viable or not viable.The Miller case in Illinois only claimed since the word gestation was referenced that referred to a pregnancy and the Illinois legislature did not address those created in a lab. I think describing stored embryos as nonviable promotes creating a class of humans unequal. A better description would be is the human organism living? Judgments are made as to whether human organisms are likely to survive to birth have been used to label living humans as nonviable. Thus, the claim in this article that “…obviously, a fertilized ovum being maintained in a cryogenic environment is not viable, ” is a claim that I do not believe is accurate. Note that Louisianna has recognized stored embryos at least as juridical persons for decades without stopping IVF services.