The Alabama Supreme Court has ruled that frozen embryos created during fertility treatments can be considered children under state law.
The decision, issued in a pair of wrongful death cases brought by couples who had frozen embryos destroyed in an accident at a fertility clinic, brought a rush of warnings from advocates who said it would have sweeping implications for fertility treatments.
Justices, citing anti-abortion language in the Alabama Constitution, ruled Friday that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.”
“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority ruling.
Mitchell said the court had previously ruled that fetuses killed while a woman is pregnant are covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”
Alabama voters in 2018 agreed to add language to the Alabama Constitution that state policy to recognizes the “rights of unborn children.”
Supporters at the time said it would be a declaration of voters’ beliefs and would have no impact unless states gain more control over abortion access. States gained control of abortion access in 2022.
Critics at the time said it would have broad ramifications for civil and criminal law beyond abortion access and that it was essentially a “personhood” measure that would establish constitutional rights for fertilized eggs.
