by Katherine Drabiak, University of South Florida, [This article first appeared in The Conversation, republished with permission]

In the weeks since the Alabama Supreme Court held that embryos are “unborn children” under one state law, most attention has been focused on in vitro fertilization – whether the decision imperils parents’ attempts to create a family. On March 6, 2024, Gov. Kay Ivey signed legislation to shield IVF providers from legal liability, though the new law does not address frozen embryos’ legal status.

As a health law professor, I believe it’s also important to understand the laws that shaped the court’s decision: not only Alabama’s laws about “unborn children,” but wrongful death laws. This is a legal claim where family members can bring a civil lawsuit against a person who intentionally or carelessly caused the family member’s death, which is different from any criminal charges.

Over the past 100 years, laws have evolved to reflect a wider sense of what it means to lose a loved one, and how to “compensate” their family. Courts have been asked to interpret how wrongful death laws should apply to situations before a child is born.

What happened in the clinic?

The Alabama case, LePage v. Center for Reproductive Medicine, was brought by three couples who had used IVF at a fertility clinic. They sued the clinic after a patient who wandered into the “cryogenic nursery,” where frozen embryos are stored, picked some up and accidentally dropped them on the floor, destroying them.

In the language of the court, this killed the embryos, since they might have developed into a healthy fetus if implanted in the uterus.

The three sets of parents filed a lawsuit based on a claim for wrongful death. Like about 40 other states, Alabama allows parents to bring a claim for wrongful death of an unborn child.

The court said the question in this case centered around whether the term “unborn child” in state laws only refers to an embryo or fetus in utero, or whether there is an “unwritten exception” for embryos that have not yet been transferred to the womb.

The court’s decision

Alabama Supreme Court cases in 2011 and 2012 had already held that the state’s wrongful death law allows expectant parents to bring a claim following a death at any stage of the embryo’s or fetus’s development.

In addition, Alabama amended its state constitution in 2018 to affirm that public policy of the state should protect “the rights of the unborn child.”

Combining the previous cases, the state constitution and even dictionary definitions, the court said nothing in the current wrongful death law would exempt “extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed.”

This ruling does not mean that the parents won a wrongful death lawsuit, but that a court will be able to hear the parents’ claim for wrongful death.

The legal ‘value’ of an embryo

This is significant because in other cases where embryos were destroyed, the law generally has treated embryos as parents’ property, or allege negligence by the clinic. Only a handful of other states – including Illinois, Missouri and Georgia – allow wrongful death lawsuits for embryos.

IVF is a significant investment of time and money, and involves a variety of medical risks. In a case where fertility treatment goes wrong, couples could try to recoup those costs through civil lawsuits that sometimes treat frozen embryos as property.

However, that does not account for each embryo’s biological and emotional uniqueness. Before the Alabama ruling, other cases had tried to classify embryos as living people to signify their irreplaceable value.

Some legal experts assert that embryos only have “subjective and relational value.” In other words, only parents can decide whether or not they are important and have meaning.

Other experts suggest that embryos have inherent value because they are each genetically distinct, unique human life at the earliest stage. They argue that allowing protection for some stages of human development but not others violates human rights principles.

How wrongful death laws work

How the value of an embryo is defined also shapes whether wrongful death laws would apply.

Wrongful death laws were originally designed to compensate family members for the loss of that person’s services and contributions. Damages from a lawsuit could pay medical bills, funeral expenses and lost earnings from that person’s job, for example.

Each state has its own wrongful death law. Since the 1850s, these laws have allowed parents to bring claims to recover damages from a person who causes their child’s death. Initially, these laws were designed as an economic tool because parents expected their children to work.

Now, according to some legal scholars, many states recognize that losing a child means much more: a moral injury, pain and the anguish from losing the child’s company and affection. Some states allow the family to recover damages for suffering and grief – recognizing a person’s inherent value, not only their economic value.

Awarding damages to a grieving family is meant to deter risky actions that could result in loss of life.

By the mid-1900s, courts began to allow wrongful death claims for children that died before birth as a result of another person’s negligence or carelessness. Some states specify that this includes at any stage of gestation.

Some laws, including in Nebraska and Texas, prevent families from suing the pregnant woman, or from suing her medical provider, if she opts to have a medical procedure that results in unintended fetal loss. Others specify that the law does not apply in cases of abortion.

What the case means moving forward

Some policymakers have expressed concern that Alabama’s decision “criminalizes” parents from trying to grow their family, or that they would face prosecution. However, this is not accurate, since this case only relates to civil lawsuits, not criminal law.

Nor does the decision prohibit using IVF. The Alabama attorney general has stated that he does not intend to use this decision to prosecute either parents or IVF providers. However, several fertility clinics announced that they would pause their IVF services while assessing the law.

Based on the U.S. Constitution, courts can only interpret what the law is, not decide what they think it should be.

In response, state legislators rapidly proposed a variety of bills aimed at preserving IVF. The bill signed into law on March 6, 2024 gives broad immunity to IVF clinics, shielding providers from prosecution and lawsuits “for the damage to or death of an embryo.” However, it provides more protection than is standard, which may create unintended consequences – for example, potentially making it more difficult to sue for negligence or breach of contract.

As Alabama legislators discuss next steps, they need to incorporate the state constitution while considering how to reflect the will of their voters.

Katherine Drabiak, Professor of Health Law, Public Health Law and Medical Ethics, University of South Florida

This article is republished from The Conversation under a Creative Commons license. Read the original article.