Alabama Embryos Ruling: Areas of Risk

On Friday, February 16, 2024, the Alabama Supreme Court issued an opinion in the case of LePage v. The Center for Reproductive Medicine [1] that affects Alabama hospitals, practices, and physicians practicing in vitro fertilization (IVF) and embryo management as well as patients who may be referred to this specialty or are undergoing current treatment.

Historically, the state of Alabama’s statutory law was that a child’s existence began at conception or fertilization without considering viability. The interpretation of the law, regardless of criminal or civil statutes, was a congruent approach that the term “child” was defined to include an “unborn child” in utero and a person who is under the age of majority. The Alabama Wrongful Death of a Minor Act [2]  previously applied to children in utero and until they reached the age of majority as a means to seek punitive damages for the death of a child regardless of viability.

In this recent ruling, however, the court specifically examined frozen embryos in vitro and how they, too, would be considered children under the Act and how their loss could also allow for a wrongful-death claim. The court held that the Act’s provisions apply to “unborn children” regardless of location in vitro or in utero, thereby concluding that frozen embryos are covered under the Act.

Accordingly, Alabama law significantly changed as of Friday, February 16, 2024, and the changes currently remain in effect.

Current areas of risk to consider in Alabama:

• If a hospital, practice, or physician manages, stores, maintains, or has possession of embryos regardless of grading, stage, length of storage, or location, the general guidance would be to no longer donate, discard, destroy, or eliminate any current embryos.
• Consider contacting current patients who may be scheduled for retrievals or transfers in the coming weeks or months, as this process has changed significantly.
• Review your current informed consent forms and address length of storage provisions with current and past patients who might have embryos in your control.
• As a hospital, practice, or physician, do not take any independent action to terminate, destroy, discard, or donate any embryos currently in your possession regardless of the state of treatment or transfer.
• Providers should caution patients about transferring, relocating, or moving existing embryos to another state. 
• Due to the difficulty in defining life for an embryo, consider appropriate measures for determining when the embryo stops dividing and may no longer be necessary to continue to store. Unlike a fetus or child who has heartbeat, brain activity, and/or respirations, discontinued life of an embryo can be more difficult to define. Consider preservation for all embryos regardless of condition, grading, or staging so long as the embryo continues to divide. 
• Documenting in the medical record of the embryo or blastocyst no longer dividing or showing the ability to divide over a set number of days may be critical prior to disposing of any embryonic material.
• Consider retraining or reeducating staff and lab management regarding policies and procedures for handling embryos due potential liability risks. 

There are a number of consequences from this recent ruling, so as more information and guidance become available, the Risk Management department will keep you updated.

References

[1] LePage v. Ctr. for Reprod. Med., P.C., No. SC-2022-0515, 2024 WL 656591 (Ala. Feb. 16, 2024).

[2] Ala. Code 1975 § 6-5-391.