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“The Alabama Embryo Ruling”
Presented by Catherine Francis

On February 16, 2024, the Supreme Court of Alabama released an extraordinary ruling, which has sparked shock, disbelief, outrage and countless Internet memes. The Court ruled that frozen embryos qualify as “minor children” for the purposes of a wrongful death lawsuit.

Given the apparent ridiculousness of the ruling, I dug a little deeper to determine whether perhaps the ruling might be justified within the context of the particular lawsuits - wrongful death claims by three sets of parents whose frozen embryos were destroyed through the alleged negligence of the cryogenic “nursery”.  After all, perhaps one could sympathize with a couple who have lost their only chance for a child as a result of wrongful conduct and who have no other redress.  But no, all three couples had already had children through IVF and there was no suggestion that the accidental destruction of the frozen embryos had destroyed their chances of having a child.  Rather, in their eagerness to pursue the American dream of winning large sums of money through the litigation lottery of the American justice system, they may have unwittingly destroyed the IVF industry in their home state which brought them their own families.

Moreover, this was not their only route of redress.  They had pursued an alternative claim for negligence which was also struck out at the lower court level.  The majority of the Alabama Supreme Court did not consider it necessary to decide the alternative claim, having concluded that it was perfectly obvious using common parlance that a frozen embryo falls within the definition of a minor child.  Indeed, they started from the accepted premise that life begins at conception and found that there was no legal justification to limit the definition to children who had already been implanted in a womb.

There were nine judges who decided the case.  One of the concurring opinions was littered with scripture, pointing out that the decision was a necessary result of the fact that all humans are created in God’s image from conception.  The sole dissenting voice, Justice Cook, appears to be just as much a traditional social conservative Republican as his colleagues, but was troubled by, among other things, the fact that frozen embryos were unlikely to have been within the contemplation of the drafters of the Wrongful Death of a Minor Act, which was enacted in 1872.

The Alabama legislature is hastily trying to put together legislation to prevent destruction of an industry that has helped to create lots of babies in God’s image for the good people of Alabama.

This kind of scripture based court ruling is utterly foreign to Canadian jurisprudence and it may be difficult to drum up much in the way of controversy on this side of the border.   However, here are a few discussion questions:

1.  Do you agree with the ruling? (Haha, joke question for this forum)
2.  Is this a natural consequence of overturning Roe v. Wade?
3.  Should parents be able to sue for wrongful death of an unborn child?
4.  What rights should fetuses have, if any?  At what stage?
5.  What protections if any should there be for frozen embryos?
6.  When does life begin?  (Might as well throw in a big one)