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.” Continue Reading...