The ruling by Alabama’s state Supreme Court on IVF has set off alarm bells across the country that the issue may be swept up in the war over abortion rights unleashed by the US Supreme Court 2022 Roe v. Wade reversal.
Almost every state has a version of a so-called wrongful death statute, the basis of the Alabama court ruling that has undermined access to fertility treatments in the state. And the 2022 dismantling of Roe, which protected abortion rights nationwide, has hyper-charged the push behind “fetal personhood” measures that seek to treat fetuses or even embryos as humans in the eyes of the law.
A number of factors, however, will shape whether the Alabama ruling will be just a one-off legal episode or a bellwether for how fertility treatments could be jeopardized by the battle over reproductive rights.
“If you’re trying pinpoint how many states this could happen in, you’re looking at not just at the wrongful death laws,” said Mary Ziegler, a law professor at the University of California, Davis, “but the composition of the state supreme court, whether there’s personhood language in other parts of the state law or constitution, or whether a judge could interpret it that way.”
The Alabama high court’s ruling, handed down on February 16, said that embryos outside of the uterus were included in the definition of “minor children” in the state’s decades-old wrongful death statute. That means that fertility clinics could face civil damages under the statute for the destruction of embryonic materials in certain circumstances.
The Alabama ruling has prompted several fertility clinics in the state to pause their services, as they assess the legal exposure the state court has created for them. Amid a political backlash, some anti-abortion activists have defended the IVF ruling while…
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