In the past week, there has been a developing story out of Alabama.  The Alabama Supreme Court ruled that several the couples who had used an IVF clinic could bring a wrongful death action against the clinic.  That clinic kept unused embryos frozen in a “cryogenic nursery.”  There was an incident at that clinic involving an intruder which causes the embryos in question to thaw.

Despite the media attention paid to this story, it is really the story of the dog that didn’t bark.   While Alabama does not technically have a “life begins at conception” law, the state constitution does have a provision recognizing that, from conception, an embryo does have a right to life.  And for a long time, Alabama has recognized that its wrongful death law does permit a cause of action for the death of an embryo.  (The debate in the case revolved around which statutes applied.  There are other statutes which limit some causes of action to an embryo in the uterus, but the majority declined to find that those statutes limited the cause of action.)  In the absence of a statute making a distinction based on implantation, if there is a cause of action for the death of a fetus against a John Doe who gets into a car accident with a woman who is pregnant causing a miscarriage, there is no logical reason that there would not be a cause of action against a clinic which has expressly (by contract) taken on a duty to protect the embryo.

Now, if you did not recognize conception as the starting point of life or personhood, there might be a basis to distinguish between an unimplanted embryo and a fetus at a later stage of development.  (And as noted above, for some purposes Alabama does nto make that distinction.)  After all, a significant percentage of blastocytes (the technical term for the early stage of embryonic development) do not successfully implant in the uterus.  In fact, many birth control  methods are designed to prevent implantation.  Even after implantation, it is not unusual for there to be an early miscarriage before it is even possible to detect a pregnancy.   But once you define life and personhood as starting at conception, even an unimplanted embryo is a person with all of the rights that the law grants to a “person.”

What is really happening here is that a court is applying laws in a way that the sponsors of this type of legislation never anticipated.  They were trying to make a political statement.  But a law — as opposed to a mere resolution expressing the views of the legislature — is something that a court is supposed to enforce.  And a large number of laws depend on personhood.  Like Alabama, my state has long had a law recognized that a fetus is alive.  My state’s laws go even further than Alabama’s and expressly states that, from the moment of conception, an embryo has the same rights as all other persons in the state.  Based on that statute, the courts in my state have long allowed wrongful death actions and homicide charges based on the death of a fetus.

In short, given this legal regime which has been in existence in conservative states for over thirty years (longer in some, shorter in others), it is a surprise that we have not seen some cause of action against IVF clinics before now.   It is easy to list the ways that when life begins matters — calculation of age, civil and criminal liability for harming a person, inheritance, taxation, the existence of constitutionally protected rights, etc.  But it was only the desire to refute Justice Blackmun’s conclusion in Roe that the U.S. Constitution did not give an unborn child any protected rights (a conclusion that flows from every other area of law) that led to states enacting these revolutionary laws.  And now the chickens are coming home to roost.  The question is which states that have gone down this road will take the opportunity to closely examine those laws and clarify their scope.  The political pressure from various interest groups in the Republican Party is about to get intent, and Republican voters are going to get a chance to see who really runs the Republican Party and which groups are supposed to accept mere platitudes.