Alabama IVF Ruling Puts Spotlight on Fetal Personhood Rights

The Alabama Supreme Court’s recent ruling that frozen embryos are “persons” subject to the state’s wrongful death statute has become a major national story, with in vitro fertilization (IVF) services across the state now paused in response to fears about new legal risks. LePage v. Center for Reproductive Medicine has brought the growing movement to establish fetal personhood rights into full focus. It’s a tremendously consequential ruling that’s about a lot of things, but I’m going to focus on the ways it is — and is not — about the U.S. Supreme Court, because a lot of the coverage to date has been confusing. Importantly, the Court’s 2022 Dobbs decision, which overturned Roe v. Wade and eliminated abortion rights under the Constitution, is a big part of the story, but not exactly in the way many have suggested.

In LePage, the Alabama court ruled that the state’s wrongful death statute, which provides a basis for parents of a child who has died to recover punitive damages in civil litigation, applies to “extrauterine children.” The plaintiffs were IVF patients who had left frozen embryos in the care of a fertility clinic. When a hospital patient wandered into the clinic’s cryogenic nursery and destroyed the embryos, the patients sued under several legal theories, including wrongful death.

Notably, the Alabama court wasn’t starting with a blank slate — it had been developing fetal personhood rights under state law even when Roe was still on the books. Back in 2011, the court had ruled that the state’s wrongful death statute applies to an “unborn child,” regardless of viability. The court characterized the issue before it now as whether there is “an unwritten exception” to that rule when an unborn child is “not physically located ‘in utero.’” It concluded that nothing in the law “narrowed” its otherwise sweeping application — in other words, that frozen embryos should be treated no differently than other “unborn children.”

The court also leaned heavily on a 2018 amendment to the Alabama Constitution, which established that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” (The Arkansas Constitution has an amendment with similar language.) The court treated this policy statement as a “constitutionally imposed canon of construction” — meaning that any ambiguous statute should be interpreted to treat the rights of “unborn children” equally to those of “born children.” (Among other things, this opens the door to applying other Alabama legal protections to frozen embryos as well.)

While the majority opinion focuses on statutory interpretation, in a concurrence, the chief justice raised the possibility that the outcome was itself constitutionally mandated and that the Alabama Constitution might require other limits on IVF as well. It’s quite a read. The amendment, the chief justice argued, adopts a “theologically based view of the sanctity of life,” including that “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.” What does this mean in practice? That “any legislative (or executive) act that contravenes the sanctity of unborn life is potentially subject to a constitutional challenge under the Alabama Constitution.”

As we consider LePage’s implications, something that’s gotten lost in a lot of coverage is that Alabama didn’t need Dobbs to give fetal personhood status under its laws, or to apply that personhood status to frozen embryos under its wrongful death statute. LePage is an extension of fetal personhood protections that have existed and been enforced in Alabama (and many other states) for years, including via criminal law — part of a long-term campaign by abortion opponents. Applying a wrongful death statute to frozen embryos is unprecedented, but it’s not newly permitted due to changes in federal abortion law, even if courts may be newly emboldened. Rather, even before Dobbs, a lot of what we might think of as reproductive rights have actually been functions of state law. In that sense, LePage is part of a long tradition.

That doesn’t mean, of course, that Dobbs isn’t also part of the story. Dobbs was cited three times by the LePage majority, including for the claim that “the unborn were widely recognized as living persons with rights and interests” in the 19th century. It’s almost certainly the case that the Alabama court saw itself in conversation with the U.S. Supreme Court’s abortion jurisprudence.

In Dobbs, the U.S. Supreme Court declined to express “any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” That’s a gaping jurisprudential hole with the potential to justify federal constitutional abortion limits or even bans. And it’s likely to be seen by conservative state courts as an invitation to start developing fetal personhood jurisprudence — both in and out of the abortion context — with an eye to ultimately shaping the development of federal constitutional law. (This is what University of Pittsburgh Vice Dean Jerry Dickinson called “judicial federalization” in a recent piece.)

The widespread backlash to the Alabama decision may make other courts hesitant to follow in its footnotes on IVF, and Alabama may ultimately change its laws (or even further amend its constitution) to limit the scope of the court’s ruling. But in the post-Dobbs landscape, fetal personhood claims are almost certain to take on new prominence.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Alicia Bannon, Alabama IVF Ruling Puts Spotlight on Fetal Personhood Rights, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 29, 2024), https://statecourtreport.org/our-work/analysis-opinion/alabama-ivf-ruling-puts-spotlight-fetal-personhood-rights.