The Alabama Supreme Court recently ruled that frozen embryos can be considered children, according to state law. The decision has left Jill Lens worried.
“How many people in Alabama right now have their embryos frozen and they’re like, ‘What happens next?’” asked Lens.
Lens is a professor at the University of Arkansas School of Law, with a focus on reproductive justice and reproductive rights.
“Most people would think abortion immediately when they think of that,” Lens said, “but it's much broader than that- it's reproductive health. Really, my main focus is pregnancy loss and, more specifically, stillbirth. So that's the later pregnancy losses.”
Frozen embryos are a critical part of the in vitro fertilization process, or IVF. Essentially, a man’s sperm is collected, a woman’s egg is surgically retrieved, and doctors fertilize the egg in a laboratory.
“A few couples had embryos frozen,” Lens said. “They had done IVF, and they had extra embryos frozen. Apparently, the clinic didn't have the best sort of security measures because a patient from an adjoining hospital was able to wander in the room where the freezer had embryos and grab some embryos, and they were destroyed.”
Under Alabama's Wrongful Death of a Minor Act, when the death of a minor child is caused by wrongful action or negligence, the parents may seek damages. A version of this law is in place in many states and is meant to provide greater repercussions for someone who commits a crime against a pregnant person.
“What the plaintiffs wanted to do was to sue the clinic,” Lens said, “because it does seem like pretty obvious negligence [because] these embryos [weren’t] better secured. But then it's like, well, what do you sue for? What is what is this this frozen embryo?”
In previous instances, when frozen embryos were accidentally destroyed, they were considered property damage.
“Which doesn't really fit either, to be honest,” Lens said, "but that's what courts have done so far. What the Alabama Supreme Court said was, ‘No, you can sue for wrongful death of a child.’”
Justice Jay Mitchell wrote in his opinion that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” The phrase he uses to describe frozen embryos is “extra-uterine children.” Lens said that the law in Alabama simply says “minor children” with no exceptions, which means that people can use this at any stage of pregnancy, whether you’re 30 weeks or six weeks.
“Well, if that's your precedent, it's not a big leap to it also applying to being a child in a frozen embryo case,” Lens said. “It's really not a big leap. Because when you think about it, why would it matter location wise? Why would it matter if it was in the womb for two days or if it was in the freezer? So honestly, the precedent in Alabama supported this."
Laws around wrongful death of a child exist in Arkansas as well. Jim Hendren is a former legislator from Benton County, and he sponsored legislation back in 1999 called the Fetal Protection Act.
“When Governor Sanders' dad was the Governor, Mike Huckabee, I was in the [House of Representatives],” Hendren said. “In fact, it was a governor's staff who came to me and said, ‘In Arkansas, there's no protection in the criminal statute for the death of an unborn child.’ Whether it be six weeks or 24 weeks, there was just nothing at all spoken in the law about that. Many states at the time were beginning to say if a woman is a victim of a crime, and she's pregnant, and it causes her to lose that unborn child, the crime can be escalated beyond just assault to actual homicide because of the loss of that unborn baby.
Hendren said the law that was passed specified that an unborn child was a living fetus of 12 weeks or greater gestation.
“I want to emphasize this — I sponsored a lot of pro-life bills,” Hendren said. “This was not a pro-life bill or a pro-life initiative. This was a criminal statute with regard to a pregnant woman who is a victim of crime.”
Hendren was elected as a state senator in 2012, hesponsored an amendment to the Fetal Protection Act that did two things:
“We move that back earlier to conception,” Hendren said, “but we put an exception for in vitro fertilization to make it clear that we were not in any way addressing women who had fertility problems or who were trying to use technology to have a baby. We were addressing criminal actions.”
Hendren said when they were writing the legislation, they heard from people who were concerned that changing the language of the bill to say that an unborn child is “offspring of human beings from conception until birth” could lead to unintended consequences that impact IVF.
“The last thing that I am trying to do in this piece of legislation is in any way, hamper families access to technology to give them a better opportunity to have a child and I will be crystal clear that that is not what this legislation is about.”
The law specifically makes exceptions for “assisted reproduction technology activity, procedure, or treatment” as well as “an act occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization.”
Law professor Jill Lens said the action that was taken in Alabama could have lasting effects.
“I think the more accurate reading is that this makes IVF more difficult the way we do IVF in this country,” Lens said.
In the United States, the standard way to perform IVF procedures is to retrieve as many eggs as possible during a surgical procedure and attempt to fertilize as many of those eggs as possible.
“And the reason for that is one: you don't have to do that extraction all the time because it's physically difficult and it's expensive,” Lens said. “And then of course not every embryo is going to take. That's another thing that is just a bit mind boggling in the opinion, is that there's no appreciation of actually the low chances of success of IVF. Everyone thinks IVF is a miracle and it is a miracle. But if it doesn't work all the time.”
Lens said that in other countries there are more regulations around how many eggs can be retrieved and fertilized at a time.
“It means there's more extractions,” Lens said, “so it means that it's more expensive, and it's more physically taxing. But there's also not the problem of hundreds of embryos in a freezer. Unfortunately, it will make IVF more expensive and it's already ridiculously expensive.”
Hendren, who served as a Republican until Jan. 6, 2021, said he sees this as a consequence of the ruling in the Dobbs v. Jackson Women’s Health Organization case.
“What we find here is the GOP is the party of the dog that caught the car with regard to Roe versus Wade being overturned and being completely delegated to the States,” Hendren said. “I can tell you many times, legislators across the country would pass laws knowing full well that they were not going to be able to implement those laws because of federal law. Well now, when people pass things in Alabama or Arkansas or Oklahoma or these other states, the guardrails are gone, and the impact is going to be felt.”
Lens is realistic when she looks at the current landscape of the state justice system.
“I don't know if comfort is the right word,” Lens said, “but there should be some assurance that our law is different. Our state law specifically says the wrongful death statute would not apply to what happened to a couple's in Alabama. Is that foolproof? I don't know if anything's foolproof these days. Could there be sort of like equal protection type challenges to that law? Possibly, but I still do see just an overriding state interest in trying to preserve IVF in its current form.”
On Feb. 29, the Alabama state legislature passed a law that would protect IVF clinics and doctors from prosecution and civil lawsuits related to damage to a frozen embryo. Democrats in the Alabama Senate attempted to add an amendment to state that an embryo outside of the uterus could not be considered a human. Republicans blocked the amendment for coming up for a vote.
