A stunning decision by the Alabama Supreme Court has sent shivers throughout the US IVF industry. It ruled last week that frozen embryos must be regarded as children under state law.

The case was brought by three couples whose embryos had been destroyed in a bizarre accident at a fertility clinic. In Burdick-Aysenne v. Center for Reproductive Medicine, the court decided 8 to 1 that parents could sue over the death of a minor child under an 1872 statute. Justice Jay Mitchell wrote for the majority: 

This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location. 

The court repeatedly used the expression “extrauterine children” to describe frozen embryos. Frozen embryos are currently regarded as property in most jurisdiction. If they are “extrauterine children”, Alabama’s IVF industry may be forced to make radical changes in its practices. The sole dissenting justice said as much in his opinion: “the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (‘IVF’) in Alabama.”

The University of Alabama at Birmingham health system has already pressed the pause button on IVF treatments. 

“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” a spokesperson said.

Even the White House weighed in. President Biden’s press secretary, Karine Jean-Pierre, said that the Alabama court’s decision would lead to “exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”