The Alabama Supreme Court ruled on Feb. 21, 2024, that the word “child” also means frozen embryos, which are typically implanted via in vitro fertilization.

Within a week of the decision, three of the state’s seven IVF clinics temporarily stopped all IVF services. Three others announced they would no longer discard any embryos in storage. Spokespeople for the clinics said they were worried that the Supreme Court decision meant that they would be liable for wrongful death if any embryos were destroyed, even as part of normal clinic operations.

Patients planning to undergo IVF treatment at the clinics that stopped services were devastated.

One woman, Gabrielle Goidel, was planning IVF after three previous pregnancies ended in miscarriage. The fertility clinic told her that it could move forward with her scheduled egg retrieval, but it was not sure if doctors could then create or store embryos made with her eggs. Goidel said it was “absolutely my worst fear,” and she found a Texas clinic that could continue her treatment.

In response to confusion about whether IVF services in Alabama could legally continue, the Alabama Legislature passed a law exempting people who receive or provide IVF services from legal liability. After Gov. Kay Ivey signed the bill into law on March 6, two of the clinics that had paused IVF procedures said that they would resume providing IVF.

But the court decision still creates a confusing, murky zone for people in Alabama who are considering IVF or already have embryos stored. I am a law professor who has written about legal disputes over frozen embryos. The Alabama Supreme Court’s decision contradicts all of the previous lawsuits across the country that are fights over stored embryos.

What led to the Alabama case

The Alabama Supreme Court case arose out of unusual circumstances. In 2020, a hospital patient walked through an unlocked door into a fertility clinic housed within the hospital, worked to find a container of frozen embryos and intentionally dropped it on the floor.

It is easy to sympathize with the potential parents whose embryos were destroyed in this case. But not all destruction of embryos is a tragedy.

Fertility clinics routinely destroy frozen embryos, with the permission of the intended parents. Couples who undergo IVF often create more frozen embryos than they implant, leaving extra embryos in storage. As many as 1 million embryos are currently in storage across the country. For various reasons, a couple or person may choose to have the fertility clinic destroy their embryos.

A thorny question arises, however, if the couple breaks up and disagrees about what to do with frozen embryos in storage.

How courts manage embryo conflict

In the disagreements about embryos that have ended up in court, typically one person wants to have the embryos implanted in the hopes of a successful pregnancy. The other person usually wants the stored embryos destroyed.

Courts faced with this question have, in the past, considered whatever the contract with the fertility clinic says. This might give one person control over the embryos, or say that the clinic should destroy the embryos if the spouses divorce.

Another rule of thumb only allows embryos to be implanted if both intended parents agree.

Finally, some courts consider what each potential parent’s interests are and favor the stronger case. Courts have been particularly likely to use this approach when one person is particularly sympathetic – for example, a woman who went through IVF after she was diagnosed with cancer that left her infertile. The frozen embryos were her last chance at becoming a biological mother.

No matter what method a court uses to weigh cases, every court in every state has, until the Alabama ruling, treated frozen embryos as property, not as children.

A new legal territory

The Alabama court’s decision throws all of this precedent into question.

The court was examining a specific law and answering whether the word “child” in the statute also applied to frozen embryos. According to the court, the “natural, ordinary, commonly understood meaning” of the word “child” includes embryos.

Additionally, the court pointed to the Alabama state constitution, which includes a section on the “sanctity of unborn life.” The court explained that the constitution directed it to treat unborn and born children equally. This means that, according to the court, anywhere the world “child” appears in Alabama law, frozen embryos could be included.

If “child” means frozen embryos across Alabama law, then it would be illegal to treat embryos as property. Instead, if former spouses disagree about what to do with frozen embryos, courts should use the same laws that apply if divorcing parents are fighting over custody of a child. This would mean that courts would ask what would be in the best interest of the embryos when determining their fate.

This confusion is understandably alarming to people in Alabama with frozen embryos in storage.

One doctor with Alabama Fertility Specialists reported that over 30 patients contacted her clinic shortly after the Alabama court decision came out, asking what to do. Caroline Veazey, who had six embryos in storage in Alabama, started an online fundraiser to help her pay to move her embryos into storage in a different state.

This ambiguity could stretch even further into other state agencies, like child protective services. Alabama law says that failure to provide medical treatment is neglect. It is easy to imagine an argument that indefinitely storing or destroying a frozen embryo is failing to provide the medical treatment of implantation into the uterus of someone hoping to become pregnant.

If child protective services were to adopt such a position, the state could argue that the people who created stored embryos had neglected their “children.” The state could then treat frozen embryos like neglected children: take them away from their “parents” and use embryo adoption programs to find them new homes.

Democrats in the Alabama House of Representatives have introduced a bill that says the word “child” should not include embryos for any purpose under state law. This bill has yet to move forward.

Alabama’s decision, though, has prompted concern that other state courts could follow its lead. Birmingham resident Kristia Rumbley, for example, said that she is trying to move her two stored embryos out of the United States entirely. “I don’t want to risk anybody else making decisions for our embryos,” Rumbley said.

Dara E. Purvis is affiliated with Population Connection Action Fund.