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What Is The Effect Of The Recent Alabama Supreme Court Ruling On In Vitro Fertilized Embryos?

In December 2020, a patient of Mobile (AL) Infirmary managed to gain access through an unsecure entry to the cyrogenic nursery at the Center for Reproductive Health (Center). The patient picked up some embryos belonging to at least three couples which had been fertilized between 2013 and 2016. Because the embryos were frozen and stored in the nursery when they were a few days old, the subzero temperature caused a burning of the patient’s hands and they dropped the embryos to the floor. Though some of the fertilized eggs had been previously implanted and resulted in live births, those stored that were dropped had thawed before they were found and resulted in them no longer being viable for implantation. Many in the press writing of this occurrence called it an accident, which it was somewhat, but in doing so made the act of theft and destruction of these extrauterine lives as something almost trvial.

Two of the couples brought a joined claim against the Center with a third couple bringing a separate claim. Each claim asserted claims under the Alabama Wrongful Death of a Minor Act. In the alternative, should the Court find the embryos as property rather than as children, there were various claims of negligence or in the case of the sole couple negligence and wantoness. The claims also included compensatory damages, mental anguish, emotional distress and the solo couple also included breach of contract.

At trial the Court held that the embryos were not living children and due to other legal reasons no legal theory was actionable with the exception of the solo couple’s breach of contract claim. Though not a part of the opinion, the prior Roe v Wade case had supported that a child that could not survive outside of the womb to not be a viable person. Both sides appealed.

The Alabama Supreme Court held that the deaths of the embryos do fall under the Alabama Wrongful Death of a Minor Act. The majority opinion held, “All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a "human life," "human being," or "person," as those words are used in ordinary conversation and in the text of Alabama's wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child's development, regardless of viability.

The question on which the parties disagree is whether there exists an unwritten exception to that rule for unborn children who are not physically located "in utero" -- that is, inside a biological uterus -- at the time they are killed. The defendants argue that this Court should recognize such an exception because, they say, an unborn child ceases to qualify as a "child or "person" if that child is not contained within a biological womb.The Act defines life at the moment of conception and ends at death. It has been long held that the wrongful death of a minor occurs even from a criminal or negligent act resulting in the death of a minor.”

President Biden and the “pro-choice” contingent decry this as a result of the overturn of Roe v Wade. Roe v Wade was never built on sound Constitutional law and instead built on what the late Pastor Harry Reeder of Birmingham called a “culture of death”.

In Chief Justice Tom Parker’s concurring opinion with comment he quoted John Calvin,

"For the greater confirmation of the above doctrine [of capital punishment for murder], God declares, that he is not thus solicitous respecting human life rashly, and for no purpose. Men are indeed unworthy of God's care, if respect be had only to themselves; but since they bear the image of God engraven on them, He deems himself violated in their person. Thus, although they have nothing of their own by which they obtain the favour of God, he looks upon his own gifts in them, and is thereby excited to love and to care for them. This doctrine, however, is to be carefully observed, that no one can be injurious to his brother without wounding God himself. Were this doctrine deeply fixed in our minds, we should be much more reluctant than we are to inflict injuries. Should any one object, that this divine image has been obliterated, the solution is easy; first, there yet exists some remnant of it, so that man is possessed of no small dignity; and secondly, the Celestial Creator himself, however corrupted man may be, still keeps in view the end of his original creation; and according to his example, we ought to consider for what end he created men, and what excellence he has bestowed upon them above the rest of living beings." Chief Justice Parker’s opinion was truly one of the finest legal opinions that I have read on any subject, reaching back not only to historical case law and legal writings but also looking at basic eccumenical meaning on defining life.

The IVF community has however heightened awareness when each fertilized egg forms a human embryo. In Alabama, in the past there have been six basic uses of embryos. Not included are those eggs without successful fertilization and can never be viable. Those embryos, one or more that survive may be chosen to be implanted into a woman’s uterus in hopes of a pregancy that makes it to term or viability and produces a healthy infant. The other five choices are for those embryos not immediately implanted, that being for (1) donation to another couple having fertility issues, (2) donation to research, (3) compassionate transfer which is the implantation of the embryo into the mother’s uterus at a cyclical time when implantation and growth will likely not continue to occur, (4) the removal of the embryo from the cryogenic nursery where it is allowed to die and placed in medical waste and (5) storing the embryos almost indefinitely. I think that research and placing unwanted embryos in medical waste are the equivalent of the abortionist culture of death. But in a situation where maybe dozens of eggs are removed in an attempt at fertilization and maybe half of thoze are successful what do you do after successfully and unsuccessfully implanting maybe 8-10 of those and still have maybe 15-20 remaining? Even donation can be a dilemma when you consider giving away your future children that may look like you and have personality traits like you. Even with compassionate transfer where you know this tiny life will likely not survive due to being implanted at a less desireable time in the mother’s ovulation cycle. But there have been cases of healthy deliveries of implanted compassionate transfers in which God chose that the embryo lived.

IVF is an incredible possibility for a couple having their own child after natural conception has failed for whatever reason(s) after a period of at least a year. Even morally one wonders about a lab conceiving your child and giving the child their choice of genetics, even leaving open the possibility of future review of an embryo that may have less than desireable genetic makeup due to the medical history of the couple. The Bible tells us that man is made in God’s image and one must wonder where science begins to play God.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."


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