The Supreme Court of Alabama held in its February 16, 2024 opinion: “This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location … we now hold that the Act does protect extrauterine children.”
Background Facts
The plaintiffs’ IVF treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies. The plaintiffs contracted to have their remaining embryos kept in the Center for Reproductive Medicine, P.C. (“the Center”) cryogenic nursery, which was located within the same building as the local hospital, the Mobile Infirmary Medical Center (“the Hospital”). The Hospital is owned and operated by the Mobile Infirmary Association (“the Association”).
The plaintiffs alleged that the Center was obligated to keep the cryogenic nursery secured and monitored at all times. But, in December 2020, a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero
temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.
The Center and the Association filed joint motions in each case asking the trial court to dismiss the plaintiffs’ wrongful-death and negligence/wantonness claims against them in accordance with Rules 12(b)(1) and 12(b)(6), Ala. R. Civ. P. The trial court granted those motions. In each of its judgments, the trial court explained its view that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person'” or “‘child,'” and it therefore held that their loss could not give rise to a wrongful-death claim.
The Supreme Court of Alabama stated: “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.”
“These are weighty concerns. But these cases do not require the Court to resolve them because, as explained below, neither the text of the Wrongful Death of a Minor Act nor this Court’s precedents exclude extrauterine children from the Act’s coverage. Unborn children are “children” under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.”
“Article I, § 36.06(b), of the Constitution of 2022 “acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” That section, which is titled “Sanctity of Unborn Life,” operates in this context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that “protect[s] … the rights of the unborn child” equally with the rights of born children, whenever such construction is “lawful and appropriate.” Id.7 When it comes to the Wrongful Death of a Minor Act, that means coming down on the side of including, rather than excluding, children who have not yet been born. The upshot here is that the phrase “minor child” means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: “an unborn or recently born” individual member of the human species, from fertilization until the age of majority.”
“Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding “unborn life” from legal protection. Art. I, § 36.06, Ala. Const. 2022.”
Source James LePage and Emily LePage, individually and as parents and next friends of two deceased LePage embryos, Embryo A and Embryo B; and William Tripp Fonde and Caroline Fonde, individually and as parents and next friends of two deceased Fonde embryos, Embryo C and Embryo D v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, SC-2022-0515.
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