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Alabama Classifies Embryos as Children for Wrongful Death Act Purposes

Alabama, like many states, has a statute providing for civil recovery for the death of a minor.  In Alabama, that statute is the Alabama Wrongful Death of a Minor Act, located at Section 6-5-391 of the Alabama Code.  In LePage v. the Ctr. for Reprod. Med., SC-2022-0515 (Ala. 2024), the Alabama Supreme Court held that embryos sitting in an IVF lab were children under the Alabama Wrongful Death Act.

A trespasser entered an IVF clinic through an unsecured doorway, opened an IVF freezer, freeze-burned his hand, and dropped the embryos, “killing them.”  Plaintiffs sued under the Alabama Wrongful Death Act, forcing a determination of whether embryos are children under Alabama law, at least under the statute in question.

The Court begins its analysis with an unusual and gratuitous paean to the pro life movement:

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 Court then sets up the arguments of the litigants.  Arguing that an embryo in an IVF lab is not a person, the defense argues:

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 Court explained the plaintiff’s position:

The plaintiffs, for their part, argue that the proposed exception for extrauterine children would introduce discontinuity within Alabama law. They contend, for example, that the defendants’ proposed exception would deprive parents of any civil remedy against someone who kills their unborn child in a “partial-birth” posture — that is, after the child has left the uterus but before the child has been fully delivered from the birth canal — despite this State’s longstanding criminal prohibition on partial-birth abortion, see Ala. Code 1975, § 26-23-3.

The plaintiffs must be brilliant futurists, because only the plaintiffs, not the backward-minded defendants, considered what happens to lab-grown people, which raises “serious” Constitutional implications:

The plaintiffs also argue that the defendants’ proposed exception would raise serious constitutional questions. For instance, one latent implication of the defendants’ position — though not one that the defendants seem to have anticipated — is that, under the defendants’ test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a “child” or “person,” because such a child would both be (1) “unborn” (having never been delivered from a biological womb) and (2) not “in utero.”  And if such children were not legal “children” or “persons,” then their lives would be unprotected by Alabama law.

The Court concluded that embryos sitting in a freezer in an IVF lab are most certainly children:

First enacted in 1872, the Wrongful Death of a Minor Act allows the parents of a deceased child to bring a claim seeking punitive damages “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person,” provided that they do so within six months of the child’s passing. § 6-5-391(a). The Act does not define either “child” or “minor child,” but this Court held in Mack v. Carmack, 79 So.3d 597 (Ala. 2011), that an unborn child qualifies as a “minor child” under the Act, regardless of that child’s viability or stage of development. Id. at 611. We reaffirmed that conclusion in Hamilton v. Scott, 97 So.3d 728 (Ala. 2012), explaining that “Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child.” Id. at 735.

None of the parties before us contest the holdings in Mack and Hamilton, and for good reason: the ordinary meaning of “child” includes children who have not yet been born. “This Court’s most cited dictionary defines ‘child’ as ‘an unborn or recently born person,'” Ex parte Ankrom, 152 So.3d 397, 431 (Ala. 2013) (Shaw, J., concurring in part and concurring in the result) (citing Merriam-Webster’s Collegiate Dictionary 214 (11th ed. 2003)), and all other mainstream dictionaries are in accord.

If Embryos Are People, How Does That Affect Inheritance Rights?

If embryos sitting in a lab are people, the inheritance implications are severe and serious.  Alabama has at least three statutes that help to address the inheritance rights of the unborn:

Section 43-8-47

Inheritance by afterborn heirs.

Relative of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.


Section 43-8-43

Requirement that heir survive decedent for five days.

Any person who fails to survive the decedent by five days is deemed to have predeceased the decedent for purposes of homestead allowance, the exempt property and intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by five days, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the state under section 43-8-44.


Section 43-8-48

Parent and child relationship.

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the right of the child to inherit from or through either natural parent;

(2) In cases not covered by subdivision (1) of this section, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

a. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

b. The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this paragraph is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

Given the newness of the LePage case, it is uncertain to this author whether unimplanted embryos have inheritance rights, and if so, how those rights are to be addressed.  If such rights are found to exist, how are the intestate rights of unimplanted embryos addressed in a probate proceeding?  Does a trustee have to take into account the possibility of new people of the same class, e.g., “children of the deceased,” being created in the future?  If so, how?  Given the impossibility of administering trusts and estates with the possibility of new heirs being created in perpetuity, one must assume that the holding of LePage will not be extended to inheritance rights, or the legislature will have to provide a solution.