Explainer: IVF, the Alabama Supreme Court, and the Wrongful Death of Extrauterine Children

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On February 16, 2024, the Alabama Supreme Court issued a decision in LePage v. Center for Reproductive Medicine. The court determined that the term “minor child” in Alabama’s Wrongful Death of a Minor Act includes unborn children outside the womb (extrauterine children) in addition to unborn children inside the womb (in utero children) and born minor children. The extrauterine children whose deaths led to the wrongful death lawsuits in LePage were created through the process of in vitro fertilization (IVF), and they had been kept alive in a cryogenic nursery while they awaited implantation, which tragically never happened because of the defendants’ alleged negligence.

The opinion of the court, which was written by Justice James Mitchell, handles the case as a fairly straightforward statutory interpretation case. However, the court’s decision has generated considerable discussion in the United States and beyond for at least three reasons. First, the decision seems to pose an impediment for individuals and couples who seek fertility and reproductive services to have children. Second, the decision exposes to civil liability under the act those within the fertility industry who provide fertility services but fail to exercise appropriate care as to human embryos within their care. Third, the decision threatens research programs that desire a reliable supply of human embryos that can be used in research. For these and other reasons, the decision and its implications deserve careful consideration.

1. What is IVF, and what is the fertility industry?

Before turning to the court’s decision itself, we should consider the IVF procedure and the fertility industry. IVF is a procedure in which a woman’s egg is fertilized by a man’s sperm outside the woman’s body in a laboratory dish. After fertilization, embryos are implanted in the uterus of the intended carrier who may or may not be related to the embryos and may or may not be an intended parent. The sperm donor too may or may not be an intended parent. Physicians seeking to achieve pregnancy often implant multiple embryos that had not been eliminated by preimplantation genetic testing, hoping at least one will make it to term. Because multiple embryos are often transferred, there is a risk of a multiple pregnancy, and physicians will sometimes abort fetuses through selective reduction to minimize risks to the mother and the children. Embryos that are not transferred to the woman’s uterus are frozen and stored for later use, given to another individual or couple, donated for research, or destroyed.

The fertility industry provides a range of fertility services, including intrauterine insemination and IVF. It is a growing industry with a market size valued at over $5 billion in 2023. Despite its size and profitability, the fertility industry has operated in an environment of lax regulation, which has led some observers to view the industry in the United States as the “Wild West.” In explaining the reason for this, American bioethicist Arthur L. Caplan has noted that reproductive medicine is “unregulated because it touches on two, ‘third-rail’ issues”—it “touches on abortion and also the creation of embryos, which politicians run away from because too many people still disagree about the right to use reproductive technologies, particularly who should pay for them and how much.”[1] Nevertheless, examples of carelessness in this underregulated industry’s provision of services are not difficult to find. For instance, almost five years ago, an institutional provider in Ohio settled with more than 150 families after a freezer failed and caused the loss of 4,000 eggs and embryos,[2] and fifteen years ago, the multiple pregnancy of Nadya Suleman (commonly known the “Octomom”) captured national attention and shined a spotlight on lax IVF regulation and poor professional judgment.[3]

Christians should applaud the small step that this decision represents toward the regulation of an industry that has largely avoided public regulation and accountability.

2. What is a wrongful death cause of action, and what does the Alabama statute state?

A wrongful death cause of action is a statutorily created civil cause of action based upon the type of injury suffered. In a wrongful death action, one of the plaintiffs authorized by the statute to bring a civil suit seeks to recover for the loss suffered because of the tortiously inflicted death of a close relative. A wrongful death is a type of tort, which is an act or omission that causes harm or injury to another. The law that governs torts and tort remedies aims to provide relief to injured parties, to hold liable those responsible for injuries, to deter others from similar harmful conduct, and to regulate conduct indirectly.

A century and a half ago, the Alabama Legislature enacted a statute that authorized a civil cause of action for the wrongful death of a minor child. That statute currently provides that the father, the mother, or the personal representative of a minor child may commence a civil action when the minor child’s death is caused by the wrongful act, omission, or negligence of another. Ala. Code § 6-5-391. In creating this cause of action, the legislature gave effect to Article I, section 13 of the Alabama Constitution, which (like other state constitutions) declares that state courts shall be open to provide remedy by due process of law to every person who suffers injury in his or her person, property, or reputation. Furthermore, in passing this act, Alabama Legislature (like other state legislatures) exercised the expansive authority it has under the state constitution to use its police power to enact measures that advance the public order, peace, health, safety, morals, and general welfare.

3. Who are the plaintiffs and what happened to their children?

The plaintiffs are three couples who are the parents of several embryonic children created through IVF and kept alive in a cryogenic nursery until a third party wandered into the unsecured space in which the nursery was located, removed several embryos, and dropped them on the floor, killing them. These embryonic children (along with some others who were successfully implanted and later born) resulted from IVF treatments provided at a fertility clinic operated by the Center for Reproductive Medicine. The center’s cryogenic nursery is located in a local hospital that is owned and operated by the Mobile Infirmary Association. The plaintiff parents alleged in their civil suits that the center and the hospital negligently failed to keep the nursery secured and monitored at all times, which allowed the hospital patient to wander into the space and access the embryos.

4. What was the court’s decision?

Although the consolidated appeals were not originally assigned to Justice Mitchell, they were subsequently reassigned to him, and he wrote the opinion of the court, determining that the statutory text is clear and that Alabama’s Wrongful Death of a Minor Act “applies on its face to all unborn children, without limitation.”[4] Justice Mitchell’s opinion is carefully reasoned and logically exact. In considering the parents’ wrongful-death claims, the opinion noted but rejected the principal argument of the center and the hospital that there is an unwritten exception to the wrongful death act that excludes from coverage unborn children who are not contained within a biological womb. In the court’s view, neither the act’s text nor the court’s precedents exclude extrauterine children from coverage. Additionally, the Mitchell opinion explained that the court need not resolve weighty constitutional questions raised by the parties because the case could be decided on statutory grounds.

In determining the meaning of the statutory term “minor child,” the Mitchell opinion referenced dictionary definitions of “child” from the period when the act was initially passed and from the present day. The mainstream dictionaries, Justice Mitchell noted, are in accord that “the ordinary meaning of ‘child’ includes children who have not yet been born.” Additionally, he explained that the unborn were recognized as living persons with rights and interests in 18th century sources and that the Alabama Supreme Court had already determined in a 2011 decision and a 2012 decision that an unborn child qualifies as a “minor child” under the act. The Mitchell opinion also found the center and hospital’s argument that the court’s precedents compel the recognition of an unwritten exception for extrauterine children to be flawed as a matter of logic.

Christians must recognize that human embryos created by IVF are living human beings who deserve our care and protection as vulnerable members of the human community.

In his opinion, Justice Mitchell was careful to note that the court’s task is to conform its rulings to the expressions of the legislature in the letter of the statute and not to override statutory text or craft a new limitation based upon its view of wise public policy. Thus, the Mitchell opinion remained appropriately focused on the principal legal question before the court and did not venture more widely into constitutional, theological, philosophical, or public policy musings. Justice Mitchell also recognized that the people of Alabama had expressed their will that Alabama courts not exclude “unborn life” from legal protection when it amended the Alabama Constitution in 2018 and thus that the court would be required to construe the term “child” in favor of protecting unborn life if the court were to find the statutory term ambiguous. See Ala. Const. Art. I, § 36.06(b).

5. How should Christians analyze this decision and the related issues?

Both Christians and non-Christians should reflect carefully on this decision and the IVF procedure and understand all that is at stake. Unfortunately, IVF has not received the sort of careful legal, moral, and policy reflection that it deserves, and this is true of Christians and non-Christians. As a start in that direction, perhaps Christians could begin with the following five points.

First, Christians must recognize that human embryos created by IVF are living human beings who deserve our care and protection as vulnerable members of the human community. It matters not whether minor children are born, in utero, or extrauterine—all are divine image bearers who are equal in dignity to ourselves.

Second, Christians must understand what IVF involves, how human embryos produced through IVP (including the “surplus” or “spare” embryos) are treated and used, and what the moral implications are. Christians must also appreciate that those who participate in the creation of human lives by IVF bear responsibility for those lives.

Third, Christians considering IVF must put the welfare of children (including unborn children whether in utero or extrauterine) first and critically and prayerfully evaluate their personal desires, plans, and undertakings. Additionally, Christians must recognize (1) that we should not do all that medical science may allow us to do and (2) that we should not do some things in the way that medical science does them. There are limits that require our attention.

Fourth, Christians should applaud the small step that this decision represents toward the regulation of an industry that has largely avoided public regulation and accountability. Close scrutiny of the industry is overdue, and regulation of the organizations, facilities, service providers, and procedures is warranted. Civil government has been ordained to commend those who do good and punish those who do wrong, and, with the fertility industry in general and IVF in particular, civil government has an important role to play in commending what is just and good and punishing what is evil.

Fifth, Christians should give careful attention to the use of human embryos in research. The fertility industry supplies human embryos produced through IVF to researchers and research institutions for use. In the process of conducting research, living human embryos are destroyed. Christians should be deeply troubled that these living human beings are treated as means to the researchers’ ends and not as ends in themselves.

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[1] Michael Ollove, “States Not Eager to Regulate Fertility Industry,” Stateline (Mar. 18, 2015), https://stateline.org/2015/3/18/states-not-eager-to-regulate-fertility-industry/.

[2] John Caniglia, “UH Freezer Malfunction Update: More Than 150 Families Settle Lawsuits in Loss of Embryos,” Cleveland.com (Sept. 29, 2019), https://www.cleveland.com/news/2019/09/uh-freezer-malfunction-update-more-than-150-families-settle-lawsuits-in-loss-of-embryos.html.

[3] Associated Press, “‘Octomom’s’ Doctor Apologizes for Implanting 12 Embryos, CBSNews.com (Oct. 21, 2010), https://www.cbsnews.com/sanfrancisco/news/octomoms-doctor-apologizes-for-implanting-12-embryos/.

[4] Five justices concurred in Justice Mitchell’s opinion. One justice concurred in the result, and another concurred in the result in part and dissented in part. One justice dissented. Five of these justices wrote opinions separate from the Mitchell opinion.

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MA Ethics, Theology, and Culture

The Master of Arts Ethics, Theology, and Culture is a Seminary program providing specialized academic training that prepares men and women to impact the culture for Christ through prophetic moral witness, training in cultural engagement, and service in a variety of settings.

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Michael J. DeBoer

Michael J. DeBoer is Associate Dean for Academic Affairs and Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law. He holds degrees from Liberty University, Southeastern Baptist Theological Seminary, Valparaiso University, and Indiana University. He is currently pursuing a ThM in Christian Ethics at Southeastern Seminary.

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