Are My Rights or My Embryos Affected by the Alabama Supreme Court Case?

As you may be aware, the Alabama Supreme Court has now ruled that embryos are “unborn children” under the Alabama State Constitution. We admit, that’s a scary ruling. The Alabama Supreme Court is the first court in the United States (the only one, so far) to issue a final judgment holding that a frozen embryo¹ has the rights of an unborn child.

This ruling will almost certainly have a chilling effect on access to IVF in Alabama. That is a tragedy for the people in Alabama who need IVF to build their families. We feel for the people in Alabama who will be impacted by this.

However, we are writing this blog for people outside the State of Alabama. It is reasonable for people to be concerned about whether this could happen in their state. Here is the good news:

This case has no direct legal impact outside the State of Alabama. The Alabama Supreme Court’s ruling is very narrow, and only concerns Alabama law. It has absolutely no legal impact on people outside the State of Alabama—unless they have frozen embryos stored in Alabama or are seeking IVF treatment in Alabama.

You might be thinking about any or all of the following questions:

1. Is IVF going to become illegal?
2. Are other states going to follow Alabama’s ruling?
3. Do I/we still get to decide what to do with my frozen embryos?
4. Do I need to move my frozen embryos?
5. Could the U.S. Supreme Court rule that a frozen embryo is a person?

1) Is IVF going to become illegal? No. Even if courts issue rulings similar to the Alabama Supreme Court’s ruling, that does not in any way make IVF illegal. It could significantly drive up the cost of IVF, because malpractice insurance premiums will increase dramatically. It could cause fewer fertility physicians to practice in states like Alabama. It will change the calculus doctors use when determining how many embryos to create through IVF, but again, only in states like Alabama.

2) Are other states going to follow Alabama’s example? It’s possible that some states may, but less likely than you think. Courts in other states have previously been presented with the question of whether a frozen embryo is a person, and no other court making a final decision has reached the same conclusion as Alabama. In Missouri, for example, there is already a Court of Appeals case that states that frozen embryos are not persons (even though there is a statute in Missouri which provides that life begins at conception). The new Alabama ruling is based on a 2022 Amendment to the Alabama Constitution. That amendment, which protects the rights of unborn children in Alabama, doesn’t say anything about frozen embryos. Most other states are unlikely to follow Alabama’s example unless there is a specific statute or constitutional amendment stating that a frozen embryo is an unborn child. No state, other than Louisiana, has any such statute.

3) Do I/we still get to decide what to do with my/our frozen embryos? In Alabama, not entirely. However, in every other state except Louisiana, you still have every right to decide what will happen to your frozen embryos. Even if you live in Alabama, at least at the current time, you can donate your frozen embryos to another person or persons for their reproductive purposes, or transfer your frozen embryos to another state and dispose of them in the manner that is appropriate for you.

4) Do I need to move my frozen embryos? No, unless your frozen embryos are stored in Alabama. You should pay attention over the next few years as to whether there is a case in your state that will be addressed by your state’s supreme court, or if there is a constitutional amendment coming up for a vote in your state to attempt to classify frozen embryos as unborn children. Other than that, your frozen embryos are safe where they are.

5) Could the U.S. Supreme Court Rule that a Frozen Embryo is a Person? It is likely that at some point, the U.S. Supreme Court will take a case in which this issue is raised at the state level. However, even if you have very little confidence in the current U.S. Supreme Court, it is extremely unlikely that the U.S. Supreme Court would rule that a frozen embryo is a person. The Supreme Court could potentially rule that this is an issue that may be decided by each individual state. If that were the case, then you would likely have some states that might have laws giving frozen embryos the character of an unborn child, and giving them the rights of an unborn child. We believe that is unlikely to happen in more than a few states, if at all. The vast majority of states will continue to treat frozen embryos as property of a special character, which will continue to give patients the right to determine what will happen to their frozen embryos.

We want to emphasize that this analysis represents our opinion. It is not fact. The purpose of this blog is to help our clients and anyone else understand this recent decision in the context of their family and fertility needs. Should you be concerned? Yes, but there is no need to overreact. If you are worried about your rights or the rights of anyone else to access fertility treatment, then make your voice heard loudly. Pay attention to calls for action. Contact your state legislators and your members of congress. Call, write, email, and protest. Vote for people who will not support laws which infringe on your rights to make decisions about your family. These are your most powerful weapons.

1 A “frozen embryo” is really a pre-implantation pre-embryo. It is not an embryo until after it is implanted in the woman’s uterus. It cannot be a child unless it is implanted in a uterus. However, most people, and even courts, refer to pre-implantation pre-embryos as “embryos.” To avoid confusion, we are simply calling them frozen embryos.