Protection of the embryo: the Alabama Supreme Court recognises that embryos are "unborn children"

The ruling was prompted by a complaint lodged against a clinic by three couples whose embryos stored for in vitro fertilisation were accidentally destroyed in 2020. The Supreme Court based its decision on the Wrongful Death of a Minor Act of 1872. The justices relied on specific case law (Mack v. Carmack) to define the term "minor child" and to declare that unborn children fell within that definition - "regardless of stage of development and regardless of location", in the words of Justice Jay Mitchell, one of the seven of nine justices who voted in favor of the ruling. Insofar as the Wrongful Death of a Minor Act makes no distinction between in vitro and in utero embryos, the judges chose to protect frozen embryos in the same way as embryos that had already been implanted, thereby vindicating the couples who had brought the case on the grounds of the wrongful death of an "unborn child". 

Although it is too early to assess the precise impact of this decision on artificial reproduction activity in Alabama, it is possible that the fact that the embryo is considered to be "a genetically unique human being whose life begins at fertilisation and ends at death", in the words of the ruling, could force clinics to take greater care with embryos. In practice, IVF undoubtedly leads to the destruction of certain embryos, particularly those that are carriers of disease or disability, for example, or simply surplus to requirements. In Belgium, according to the Belrap report for 2020, out of 68,229 embryos conceived by IVF, 9% are transferred in the womb, 18% are frozen, and 48.7% destroyed (i.e. 34,999 embryos). These figures raise questions at a time when the status of embryos continues to be debated in Europe and the rest of the world. 

In response to the fears expressed by in vitro fertilisation clinics, the Alabama State House and Senate passed simultaneous bills on Thursday 29 February to provide "civil and criminal immunity for healthcare providers who perform in vitro fertilisation services". In Florida, a "foetal personhood" bill that would have granted civil rights to foetuses was suspended under pressure from Democrats who feared it would discourage couples from using IVF or hinder access to abortion.