Tweet Share Share Comment The Alabama Supreme Court ruled on Friday that frozen embryos are people. If the court follows its own reasoning to its logical conclusion, in vitro fertilization will end in that state, because these “children” cannot be destroyed by anyone—including not only the clinics, but even those who decide to store their embryos with them.
The court’s unprecedented decision was reached in a case alleging that embryos stored in a “cryogenic nursery” were negligently secured, and that the facility was not properly monitored. The complaint states that the defendant, the Center for Reproductive Medicine, allowed a hospital patient to enter the fertility clinic, remove several embryos, and then drop them, causing their destruction. The plaintiffs are former patients at the clinic who had become parents through successful implantation of other embryos they had helped to create, but who had opted to leave the remaining ones in cold storage. Those embryos are the ones the hospital patient allegedly dropped.
The court construed the state’s wrongful death statute to apply not only to embryos and fetuses in utero, but also to embryos at a “few days” of gestation that had never been implanted in anyone. As the dissenting opinion points out, this bizarre conclusion misreads the state’s own wrongful death law. Worse, if applied consistently, the decision would fundamentally expand the reach of wrongful death statutes, with serious and unanticipated consequences.
A short history of wrongful death laws will help situate this discussion. These laws have always occupied a strange place in tort law. For reasons that remain speculative and unclear, until the latter part of the 19th century the civil law provided no remedy against a defendant whose wrongful conduct caused the death of another person. Causing serious injury, by contrast, could lead to a negligence claim, and a substantial award of damages, in favor of the injured plaintiff. You read that right: It was better, financially speaking, to cause someone’s death than to cause them serious injury.
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This anomalous state of affairs changed during the late 19th century. But it was state legislatures, not common law courts, that brought about this much-needed reform. Thus, unlike most of tort law, wrongful death cases depend on statutory interpretation rather than on judge-made, common law evolution. Moreover, they have always differed from personal injury cases in one crucial way: While the injured party is the one who recovers damages in a negligence case, the damages in a wrongful death cases are awarded to surviving family members, and are primarily based on the financial losses they endure because of the death. From the beginning, they were mostly brought by surviving wives and children who were left without their principal means of financial support. Understanding the purposes of wrongful death law turns out to be crucial to seeing one of the reasons why the Alabama court’s decision is so wrongheaded.
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For a number of reasons, wrongful death cases have long been an imperfect vehicle for compensating parents whose children are negligently killed. Since the losses generally center around the financial impact of the death, kids are (with rare exceptions) not exactly income generators for the family. Quite the opposite; financially speaking, they are a drain, not an asset. Therefore, some statutes now expressly permit recovery for loss of the companionship of a child, while some courts have generously interpreted more limited language in their state statutes to achieve that same result. Of course, such damages are difficult to assess.
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The difficulties of proving loss multiply in several ways when the question moves to whether a family can recover damages for the death of “unborn children,” to use the Alabama’s court repeated description. And, like other wrongful death statutes enacted more than a century ago, Alabama’s made no provision for zygotes, embryos, or fetuses. The law, enacted in 1872, provides for recovery for the “death of a minor child.” As the dissent points out, a “child” is a person who is born, and whose life is then ended by someone’s wrongful act. And as the dissent also demonstrates, Alabama courts consistently applied that definition in a series of cases spanning many decades. In recent years, though, the court “discovered” that the language of the wrongful death law now applied to fetuses—and at any stage of development.
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In fairness to the Alabama court, other states have also been inconsistent in these cases. Many courts now allow wrongful death claims where the fetus was “viable.” Whatever the problems with the viability standard in abortion cases, it makes sense in wrongful death suits. If fetal development has progressed to the point where survival outside the womb is possible, it’s easier to argue that an independent life was ended. Push too far back in embryonic development, though, and the argument weakens quickly. Many courts still balk at allowing wrongful death claims in these cases, in part because it’s impossible to determine whether the pregnancy would have resulted in the birth of a live child. (Consider the prevalence of miscarriage during the first trimester.) Too, there are no actual economic damages, and even the loss of companionship is entirely speculative. Nonetheless, a few courts have permitted recovery in these cases.
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Mark Joseph Stern
Alabama’s Assault on IVF Is Even Worse Than It Sounds
Read More But until this Alabama decision, no court had permitted a wrongful death claim in the case of a negligently destroyed frozen embryo, even though the theory has been tried in other states. No conclusion other than rejecting liability is tenable. Consider the facts in the very case the court decided. As the court summed up the defendant’s position during oral argument, the three sets of parents had contracted as follows: to “destroy any embryos that had remained frozen longer than five years,” or to donate them to researchers whose projects would “result in the destruction of the embryos,” or to allow any “abnormal embryos” to be experimented on and then “discarded.” This language, by the way, comes from the majority decision, not from the dissent. But the majority allowed the case to move forward anyway, saying that these issues could be resolved at a later point in the litigation.
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That makes no sense at all. The agreements the courts referred to are quite typical, and they underscore the obvious point that even the “parents” of these embryos think of them as their property, to be negotiated about and treated as any other property they own and can dispose of as they wish. There’s an argument to be made against allowing the creation, implantation, and destruction of embryos—but that’s an argument for bioethicists concerned about what they view as commodification of human beings, not an excuse to warp the wrongful death law to convert the embryos into something they plainly are not.
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There are two possible consequences here, and we should hope that the illogical one prevails. If the court believes that these embryos are in fact “unborn children” protected by the wrongful death law, then none of these alleged agreements are legally valid under standard principles of contract law. To state the obvious: You can’t contract for the death of human beings. But perhaps the court will ignore or try to sidestep this embarrassing point when the case returns to the justices, and somehow try to square the circle by holding that these embryos are somehow not yet “people” when such agreements are initially made. (I said it didn’t make sense.) Meanwhile, what is a trial court supposed to do with this inconsistency in the meantime, now that the case has been sent back for further proceedings?
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The more cataclysmic outcome would ensue if the court follows its own logic: If these embryos are in fact “people,” then their destruction would be, in a word, murder, as that term is commonly understood: The intentional taking of another human life. The court dips a toe into this whirlpool by stating that the patient “killed” (rather than “destroyed”) the embryos. Currently, those “killings” could not be prosecuted under the state’s criminal law (which does consider killing a woman while she’s pregnant a double homicide), but they would certainly amount to causing a “wrongful death,” and the court would then need to appoint a guardian to represent the “interests” of the wrongfully destroyed embryo. The logic of this decision would be that the wrongful death suit would then be appropriate against both the clinic and those who decided to freeze their embryos. It’s hard to say whether the court will go this far, but that’s where the analysis leads. At least for now, both of those groups should be worried about suits brought on behalf of these embryos—which would likely come from the very same groups that led the charge against the right to terminate a pregnancy.
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Even if the court doesn’t go that far, IVF treatment will effectively and soon become financially out of reach for some people. No clinic will freeze unused embryos—at least not without a strong waiver of liability, the enforceability of which is now unclear. And for fear that the waiver will be declared unenforceable, clinics will beef up security, and pass that cost on to hopeful future parents.
I’m not even done. Yet another problem is that the categories of damages that are awarded in wrongful death laws simply do not fit the frozen embryo cases. Financial loss to surviving family members? Forget that. And loss of companionship? Here’s the chain of causation that would be needed for that to work: First, the couple would have to show that they planned to implant the embryos at some future date. Even if that could be established, they’d then have to show that: 1) the embryos would have been successfully implanted; 2) they were viable; and 3) they would have survived the pregnancy and been born alive. Given the low percentage of success of IVF treatments, such a combination of showings would border on the impossible, and vividly illustrates why no other court agrees with Alabama.
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I’m not arguing that these couples should be without remedy. But that remedy lies in negligence, for the loss of property. And evaluating the cost of that loss need not be limited to out-of-pocket losses. Alabama is among a number of states that allow recovery for the “true value” of the lost property to the plaintiffs. The principle was established in a 1918 case involving the wrongful destruction of the plaintiff’s photographs, and is routinely invoked in cases involving pets, which are what I might call “property-plus.” The same approach could lead to a fair outcome here: If the negligence case is proven, the defendants should be made to pay, even if the embryos would have been destroyed in any case. It’s one thing to imagine them going to science; it’s quite another to imagine them dashed to the floor, an episode likely to cause people like these plaintiffs to experience a true sense of loss. These embryos are property, legally speaking, but a lot can still be done to protect real interests. Twisting wrongful death law into a pretzel isn’t the way to do that.
I would like to thank my colleague, Brendan Conner, who is an assistant professor of law at Delaware Law School , and my torts students for their helpful insights.
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