By: Marla Neufeld, Esq. , Myrna L. Maysonet, Esq. , and Alan B. Cohn, Esq.
On February 16, 2024, the Alabama Supreme Court issued a radical ruling finding that frozen embryos (i.e. embryos still in the laboratory setting and prior to transfer into a uterus), are considered children giving personhood status to frozen embryos, something that nationally, has been historically treated as personal property. More than 100 similar bills classified as “personhood bills” have been proposed nationally, however, Alabama is the first to make this determination concerning frozen embryos.
This ruling stemmed from consolidated cases heard by the Alabama Supreme Court regarding multiple In Vitro Fertilization (IVF) patients who lost their frozen embryos that were accidentally dropped. These patients subsequently sued the fertility clinic and hospital for wrongful death pursuant to Alabama’s Wrongful Death of a Minor Act (which dates back to 1872, pre-dating IVF), claiming that the embryos were “extrauterine unborn children”. Interestingly, the embryos were dropped by a hospital patient who entered a restricted area of the fertility clinic, opened the fertility clinic’s cryo-preservation tank, grabbed the embryos without gloves, and when burned by the sub-freezing temperature, dropped the embryos.
The immediate fallout from the Alabama court’s decision was that IVF clinics in Alabama are to pause IVF cycles fearing civil and criminal liability for physicians and patients; the ruling has caused an earthquake across the nation regarding concerns for protecting reproductive rights. Rapid legislation was later passed in Alabama to allow IVF procedures to resume, however, the trend in granting personhood status to frozen embryos creates concerns in other conservative states.
According to Resolve , the national infertility association, 1 in 6 people suffer from the disease of infertility. Most people know someone who has gone through or is going through IVF. It may be a friend, grandchild, co-worker, or client, or you may have gone through the IVF process personally. Should personhood laws pass in other states, the inability to destroy or damage embryos and IVF clinics’ reaction to halting or restricting IVF treatment is far-reaching. The outfall of the Alabama ruling raises important legal questions such as: (i) What does the Alabama ruling mean if I have frozen genetic material in storage or embarking upon IVF? ; (ii) Can I ship my frozen embryos to another state? and; (iii) How does the ruling impact legal issues such as reproductive rights, estate planning, divorce, and employment issues?
Reproductive Rights Legal Implications: Laws regarding IVF and reproductive technologies, such as abortion, surrogacy, and embryo donation, are state-specific. It is critical that if a loved one or you undergoing IVF has concerns about the legal status embryos or the laws regarding specific reproductive rights issues, such as the ability to use/destroy embryos or abortion rights, that you speak to an experienced reproductive attorney in the applicable state to understand whether similar personhood laws are applicable or what restrictions apply to the ability to have an abortion for an expecting mother or surrogate.
When embryos are frozen long-term, they are many times shipped to a location outside of the fertility clinic to a long-term storage facility. Often, the long-term storage facilities are located outside the state of the fertility clinic. If you have frozen genetic material, it is important to understand which state your frozen genetic material is stored. If your embryos are located in Alabama or another state of concern, frozen genetic material can be transported and shipped outside of the concerning state. Patients can speak to their fertility clinic and long-term storage facility (if applicable) to understand the facility’s protocols for allowing the destruction of frozen genetic material and the facility’s procedures involved in shipping such material outside an applicable state, if necessary.
Trust and Estates Legal Implications: For anyone who has children, contemplating having children, or has grandchildren, it is critical to have an estate plan established to ensure that your wishes are respected in regard to the handling of your property/assets and children in the event of death or incapacity of the parent(s) or grandparent(s). For example, upon death or incapacity, do you want your frozen embryos destroyed, donated to science, or donated to a third party for procreation and would those wishes comply with your state’s laws? When creating your estate plan, be sure to inform your estate planning attorney if you have frozen genetic material (i.e. , frozen eggs, sperm, and/or embryos), so your estate plan can address what happens to such frozen genetic material upon death or incapacity. It is also important to ensure that whatever disposition of frozen genetic material you indicate in your estate plan that the intention of disposal is consistent with the disposition indicated when the genetic material was frozen with the fertility clinic and long-term storage facility (if applicable).
Employment Implications: This ruling will certainly impact those employers whose health insurance or benefit providers cover IVF, whether voluntarily, as part of a collective bargaining agreement, or as required by state regulations. Right now, there are approximately 21 states and the District of Columbia that require at least some coverage for infertility treatment. Those employers should have their Human Resources Department immediately contact the benefit provider to discuss what impact, if any, the Alabama Supreme Court decision has on the current IVF coverage for the company’s employees. They should also inquire whether there are any pending legal issues in their own state which may impact the legality of IVF and what alternatives will be provided to the covered employees to obtain IVF treatment in other states. For those employers who are thinking about expanding their benefits plan to cover infertility treatments, including IVF, they need to evaluate their respective legal landscape to determine whether it is feasible to proceed and how will they protect their employees if there is a drastic change affecting the legality of the procedure or the byproduct such as embryos. This is something that they should discuss with their benefit provider, Employee Assistant Programs and legal counsel. Lastly, if the coverage is part of a collective bargaining agreement, the employer and union representatives should meet to discuss these issues as well.
While the Alabama legislature has now enacted protections against liability for IVF providers, the issue of personhood for frozen embryos remains unaddressed. Although some benefit providers do pay for the storage of frozen embryos for a set amount of time or cycles, the long-term storage fees will mostly be paid by employees. Clearly, employes will be concerned about their ability to control the use, move or even destruction, of their own frozen embryos. This is another matter that should be addressed with the benefit providers as well.
Marital Law Implications: If you are undergoing or have undergone IVF and plan to freeze genetic material, it is recommended to inform your marital/family law attorney if you are considering getting married and preparing a prenuptial agreement. The same applies if you plan on getting a divorce; this ensures that the frozen genetic material is properly distributed or disposed of upon divorce or separation of a couple. In the context of a divorce or separation when the couple owns or created embryo together, nationally the case law typically finds that a person’s right not to procreate trumps the wishes of the person wanting to receive the embryos for procreation, so in the divorce contexts when a couple has frozen genetic material, the courts typically rule that the embryos need to be disposed of instead of allowing one spouse to use the embryos for procreation purposes. With personhood status granted to frozen embryos, this could potentially prohibit the ability to destroy embryos upon the divorce of a couple who created or owned the embryos.
As of the date of this article, frozen genetic material is classified as personal property in Florida with no restrictions on the ability to destroy embryos upon divorce, however, should personhood status be granted to frozen genetic material in Florida, it could result in an elevated status of the frozen genetic material which could have implications on the date in which child support may begin based on how the courts define the date of conception.
If you have any questions pertaining to how these changes can affect you, please contact [email protected]
In addition, Greenspoon Marder will be hosting a live Zoom webinar on Tuesday, April 2 at 3 p.m. ET, to discussing this ruling and its implications on the future of IVF nationwide. Click here to register.
