MARCH 2024 IGNOMINIOUS ABSURDITY OF THE MONTH: THE IGGY

1. Alabama Supreme Court. The Alabama Supreme Court, in its ultimate wisdom, ruled this month that frozen embryos are the legal equivalent of children. This has caused Alabama’s largest hospital to pause in vitro fertilization treatments for fear of criminal prosecution. Other fertility treatment providers in the state were continuing to provide IVF as lawyers explored the impact of the ruling.

“Unborn children are ‘children’ ... without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling by the all-Republican court.

The ruling prompted a wave of concern about the future of IVF treatments in the state and the potential unintended consequences of extreme anti-abortion laws in Republican-controlled states. Patients called clinics to see if scheduled IVF treatments would continue. And providers consulted with attorneys.

Justices — citing language in the Alabama Constitution that the state recognizes the “rights of the unborn child” — said couples could sue for wrongful death when their frozen embryos were destroyed in a accident at a storage facility.

Mitchell said the court had previously ruled that a fetus killed when a woman is pregnant is covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”

The ruling brought a rush of warnings about the potential impact on fertility treatments and the freezing of embryos, which had previously been considered property by the courts. Groups representing both IVF treatment providers and patients seeking fertility treatments raises questions for providers and patients, including if they can freeze future embryos created during fertility treatment or if patients could ever donate or destroy unused embryos.

The Alabama Supreme Court decision partly hinged on anti-abortion language added to the Alabama Constitution in 2018, stating it is the “policy of this state to ensure the protection of the rights of the unborn child,” an amendment that its opponents warned was essentially a personhood measure that could give rights to fertilized eggs. Well, that time has come.