Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts and legal stories that affect us every day. I’m Rich Ford with Pam Karlan. Please subscribe to or follow this feed on your favorite podcast app. That way, you’ll have access to all of our new episodes as soon as they’re available. 

Today, we’re here with our colleague Hank Greely, who’s an expert on, among other things, law and medicine and bioscience, to talk about a decision by the Alabama Supreme Court that just ruled that frozen embryos created with in vitro fertilization, or for in vitro fertilization, can be considered children under state law. 

This decision’s already having sweeping implications for fertility treatment in the state, with the largest in vitro fertilization provider, the University of Alabama, halting IVF treatment. The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos accidentally destroyed at the fertility clinic.

Hank, can you give us some background about the decision? What exactly happened that prompted the Alabama Supreme Court’s decision? And what did the Supreme Court say? 

Hank Greely: So, this is a weird case. This was three couples filing wrongful death suits at the trial court level. I’m not an expert on Alabama jurisprudence, but it appears to me that these were not cases that went to the intermediate civil appellate court. Alabama has an intermediate civil and an intermediate criminal court. The civil court has rather restricted jurisdiction. This went straight from the trial court to the Alabama Supreme Court. Not, apparently, because the Alabama Supreme Court just reached out to take it, but because it would be the normal course of events in a case like this.

It was never tried. It was decided on motions to dismiss. Alabama seems to use the Federal Rules of Civil Procedure, or equivalent, so it’s 12(b)(1) and 12(b)(6). For those of you for whom that is deep meaningless code, it’s dismissed for lack of jurisdiction and dismissed for failure to state a claim upon which relief can be granted.

The claims here are odd, almost to the point of bizarre. They claim that some patient at the fertility center was walking around unguarded and reached into a vat cooled by frozen nitrogen, took out a little stick, a straw they call them, that had frozen embryos in it, burned his hands on the cold, dropped it and destroyed it.

It seems implausible that a patient would actually stick his hand into something that’s 200 degrees below zero, but there are no –there’s been no trial, right? These are the allegations by the complainant, by the plaintiffs. They were dismissed without any trial or any discovery. But those are the facts as stated that the Alabama Supreme Court had to rule on.

The issue that the Alabama Supreme Court ruled on was the Wrongful Death Act enacted in Alabama in 1872. In common law, there was no cause of action for wrongful death. So all the wrongful death cases, every time a relative sues to try to get damages for the death of a relative, those are all statutory in the U.S. Different states and the federal government have enacted wrongful death statutes. Alabama did it in 1872. These are not great new innovations. At some point in the 20th century, Alabama decided to add language that made it clear that these applied to an unborn child. This appears to have been the result of a case brought when a woman was injured and her fetus, the fetus she was carrying, died. She sued. The court and the legislature then amended the law to include unborn children. 

Pam Karlan: So this, in that sense, it’s a little bit like the famous Keeler case in  California where somebody assaulted a pregnant woman and kicked her in the stomach, causing her to miscarry. A question in the cases like that is: is it a different crime than if you just kicked an average person in the…. a non-pregnant person in the…

Greely: There are really two different aspects to that too, Pam. One is is there a criminal cause of action for the death of the fetus? And then is there a civil cause of action from the parent or parents for the death of the fetus? This is only about the civil cause of action. This is only about wrongful death statute. And frankly, the Alabama courts have bounced back and forth a couple of times before it decided that if the fetus is killed, whether viable or not, there is a cause of action for wrongful death.

One of the things that’s really important about a wrongful death cause of action, and what one of the concurring justices says quite nicely, is this is really a case about punitive damages. Because you can’t get punitive damages under the other kinds of theories that they might have had for destruction of the embryo. But in wrongful death cases, if it’s done with malice, oppression, and fraud, or gross negligence, or whatever the state standard is for punitive damages, you can get punitive damages. 

Karlan: Right, so if they just had lost, like a piece of property, they would have like some piece of property in a test tube, somebody breaks it, that’s not going to allow for punitive damages.

Greely: And not only that, but what are the damages for the loss of that property? How do you … what are the compensatory damages? How do you figure it out? Whereas with wrongful death, there are ways, traditionally, to figure out wrongful death damages. In terms of both pain and suffering, but also what you gain and lose from not having the relative around. 

So this is an effort by lawyers to get another cause of action to apply to this very odd, and I have to say kind of suspect, claimed facts of this case. The lower court dismissed. No intermediate court review. Goes straight to the Alabama Supreme Court, which has nine justices. The nine justices split 6 to 1 to 2. Six joined the majority opinion, one concurred only in the result, one concurred in part, dissented in part, dissented on the wrongful death issue, which is the big one here, and another one dissented on everything. So there’s both the wrongful death issue, and they also brought the more traditional loss of property, etc. issues, which the majority basically dismisses as moot. 

So it’s a 6-1-2 decision. It’s a decision that the majority opinion quite clearly grounds in the 1872 wrongful death statute as amended. And it’s a decision that the majority says, “Though there are all these huge implications, ethical, 14th amendment, etc., etc., we’re just looking at the statute. And by God, we are originalists. So we’re just looking at what the statute meant.” And, they say, the statute in 1872 meant all children, children included unborn children, and unborn children clearly, included frozen embryos. 

Karlan: So Hank, can I stop you there for just a second? Maybe you want to explain what a frozen embryo is?

Greely: Sure, happy to. Well, it’s a frozen embryo. 

Karlan: But I mean…

Greely:  Normally, the tough part of IVF is egg harvest. Getting mature eggs from a woman requires an expensive, unpleasant, and somewhat risky series of shots to hyper-stimulate the ovaries. You then take those eggs out and you mix them with sperm. This is one of those areas where life is unfair because sperm harvest for men is typically neither unpleasant, nor risky, nor expensive.

You fertilize those, you’ve got embryos. You’ve got single-celled fertilized eggs, also known as zygotes. 

Karlan: So, how many of them are they aiming to harvest in a typical procedure? 

Greely: So, with a healthy young woman, you’ll usually get somewhere between 0 and 20. The median area is around 10 or 15. They give this hyperstimulation –normally a woman during her fertile years will produce 1 or 2. They want to get as many as they can, typically that’s around 10 or 15. 

Karlan: So they get the 10 or 15 eggs, but very few of these people presumably want 10 or 15 children. 

Greely: That’s correct, as far as we know. There are occasional exceptions, but for the most part, they want one, two, three, and typically they want them spaced out in time, because having twins or triplets or more is not only dangerous to the woman carrying it, but also dangerous to the kids themselves.

So you grow this from a zygote for about five or six days in a Petri dish, in a laboratory. At five or six days, it’s about 100 to 200 cells. It’s barely visible to the naked eye if you’ve got good eyes and the lighting is right. And under a microscope, it looks like a soccer ball. The outside of the ball is called the trophectoderm, which eventually becomes the placenta and the other support staff. The interior of the vault has a few cells called the inner cell mass that becomes the embryo, the fetus, the baby–the law professor, ultimately. At that stage, you can transfer them, usually on day six in the U. S., into the uterus of a woman who’s going to carry it, or you can freeze them. Freezing has been done for over 40 years, about 40 years now. It got a lot better about 10 or 15 years ago. 

Karlan: Apparently not this one clinic. 

Greely: Well, the freezing worked fine. So the freezing, about 90 percent of them come back. And there are a variety of reasons. Sometimes you freeze them because you pick the one you want to use. Sometimes you freeze them because you want to run genetic tests on them, which take long enough that you need to freeze them. You have to transfer them by day 7 or it’s too late. But if you freeze them, the clock stops. So you can take the time to do the genetic tests. These embryos involved were probably around day 6. They were frozen. Babies have been born from embryos that have been frozen for over 20 years. Their lifespan as frozen embryos is, I think, cautiously described as indefinite. And they can be thawed out, and about 90 percent of them thaw successfully. So what parents, prospective parents, will usually do, and interestingly, I think two of the three couples here already had kids through IVF. And they liked IVF. But what they’ll do is wait and see whether they want more kids. They can store the embryos, the clinics usually charge them for storing the embryos, often several hundred dollars a year. At some point, the parents will decide, we don’t want to pay the money anymore, or we want the embryos destroyed, or we want to donate them for stem cell research, or, extremely rarely, we want them to be adopted in what’s called the Snowflake Adoption System. That’s a very small option, but it is one that people sometimes exercise. 

So, we’ve got these frozen embryos, allegedly an idiot walks around, walks by, grabs some, breaks the straw, kills the embryos. I would note: problems in IVF labs are not new. A few years ago, hundreds of embryos were destroyed in a clinic in San Francisco. Hundreds were destroyed in a clinic in Cleveland. These were not idiot patients walking around. These were failures of the refrigeration systems. Because if they thaw, and you’re not ready for them to thaw, bad things happen. So, clinics have a history. There is a history of clinics negligently destroying embryos.

Ford: Hank, sometimes the embryos are destroyed negligently. Sometimes they’re destroyed on purpose because there are 20 and the parents only want two children. And this is relatively widespread. So what’s been the implication of this Alabama decision for the general practice of vitro fertilization?

Greely: So, outside Alabama, I don’t think it’s had any effect now other than probably clinics calling their lawyers to say, “Hey, does this have any effect on us?”

Karlan: So why did the, why does the clinic in Alabama, the University of Alabama Clinic, announced they’re just, they’re getting out of the business? 

Greely: As far as I know, Pam, they haven’t announced they’re getting out of the business. They’ve announced they’re pausing. 

Karlan: Yeah, but they’re not going to do anything for the time being. 

Greely: Right. I think because they’re talking to their lawyers. 

Karlan: Well, why, why are they worried? Why are they worried about this? 

Greely: So there are two things they could be worried about. One is clearly a problem for IVF clinics coming out of this opinion, at least IVF clinics in Alabama. And that is the idea that now, if they’re sued for negligent destruction of embryos, they’re potentially on the hook for wrongful death damages, which are greater than what they previously were getting, and potentially for punitive damages, which were not in the cards before. So, their liability risk has gone up for negligent destruction or damage to embryos.

The bigger issue, and you were hinting at it, Rich was hinting at it: what happens if they’re destroyed on purpose? This opinion does not directly speak to that. It doesn’t say these are persons. It doesn’t say even that they are unborn children for purposes of criminal liability. And it’s, there’s a long discussion in the decisions about the interaction between the criminal statutes and the civil statutes. It expressly says this is not, does not necessarily mean there’s criminal liability. What it says is wrongful death liability, and if you think about it, who’s a plaintiff in a wrongful death case involving frozen embryos? The prospective parents. If the prospective parents have said, destroy my embryos, that’s not going to be a good thing for their wrongful death case.

Well, I think it, I think only has broader concerns if it goes beyond the wrongful death context.  However, much of the logic of the majority opinion and the really amazingly “violative of the Establishment Clause” concurring opinion of the chief justice, would lead you to worry that this is a court that would say intentional destruction is murder.

Karlan: But even if intentional destruction isn’t murder, if you had a disagreement between the two people who created the embryo and one of them destroyed the embryo, the other one could presumably go to the DA and say, they destroyed my child. Charge them. Right? 

Greely: Yeah. I don’t think they would go to the DA. Remember, this is a wrongful death. 

Karlan: No, I understand, but there might be the fear that that’s exactly what they’ll do. They’ll go and find some DA and say, “You know, my ex told the clinic to destroy the embryos. They killed my baby.”

Greely: And there are cases of disagreements between the prospective parents. There are a lot of cases that way because the clinics try to be careful, go to court and say, “okay, court, tell me what we should do.” And so they follow what the court says, which is typically– which the rationales vary widely from court to court–but in all states so far, except Arizona, if either parent does not want those embryos to be used to make babies, they can’t be used to make babies.

So, there is some consistency in result and no consistency in theory. You could end up with that kind of situation. You certainly could end up with the other parent, should this be done without a court order, without a court decision, which would be bad lawyering on part of the IVF clinic’s lawyers, then you could have certainly a wrongful death suit in Alabama under this rationale. 

Ford: So Hank, could you tell us a little bit about some of the other opinions of the case? You mentioned that the Alabama Supreme Court was split. So what are some of the other opinions say both the opinions that agree with …

Greely: The majority opinion, I think, just as a matter of reading case law, and even from an originalist perspective, is deeply flawed. Three of the other opinions point that out in great detail, how irrational and illogical some aspects of the majority opinion were. The other opinions are, I think, quite good lawyering opinions. The opinion that really deserves some special notice, though, is from the Chief Justice of the Supreme Court of Alabama, Justice Tom Parker. Justice Parker has been in the news before. He is a fervent Christian and it shows in his concurrence. He kind of makes an effort to distance himself in a way that makes it legitimate to talk about it. He says, well, what we’re interested in is what the people of Alabama meant when, in 2018, they added this constitutional provision about the sanctity of life. But in talking about the sanctity of life, he’s saying: here’s what the people of Alabama meant. And it’s all about God, and it’s all about a Judeo-Christian God, and I’m not even sure about the Judeo part of it.

If, in fact, he says that’s what that the Constitutional Amendment did, I think he’s saying the Alabama Constitution violates the First Amendment, in terms of the establishment of…the ban on establishment of religion. Because it is, he’s saying this is what the Constitutional Amendment meant, that all life is sacred, that God gets really angry if you mess with his image. It’s really quite an astounding opinion. It is a concurrence. It’s not the majority opinion, but it’s out there. 

Ford: Wow, well, I think I guess this leads to the question that may be on many listeners’ minds: how is this related to the recent Supreme Court opinion in Dobbs that overturned the right to privacy and reproductive liberty established in Roe v. Wade. Is this part of, I mean, in other words, is this Dobbs 2.0 moving us in a direction of something like fetal personhood? 

Greely: So I actually published an article in July of 2022, like three weeks after Dobbs came down, talking about the implications of the death of Roe, because even before Dobbs came down, it was obvious that Roe was dying, Roe was about to be killed. And in it, I said I don’t think there is going to be much of an effect in terms of embryos created for IVF. Because IVF is popular. People like IVF. Even pro-life people like IVF. There are some who don’t. The Vatican certainly doesn’t. And there are some who want fewer embryos destroyed as part of IVF.  But IVF is genuinely pretty popular. Now, I actually think I was right. But that makes this decision kind of an embarrassment for me. I was thinking about legislatures and referenda. I wasn’t thinking about very, very conservative Supreme Courts coming out with wide, wide statements. 

Technically Dobbs has nothing to do with this. Dobbs is only, well, no, technically Dobbs has nothing to do with this. Roe was never applied to ex vivo embryos, to embryos outside of a woman’s body one way or another, and its application might’ve gotten a little tricky given that the interests of the woman carrying the fetus were stressed, carrying the embryo or fetus were stressed in the cases involving reproductive freedom, reproductive liberty.

But as I noted in the article, cases are not just law things, they’re political things, too. And Dobbs was a big shot in the arm for the anti-abortion movement. It’s an affirmation of what they’ve been working at for 49 years. But that leaves all these organizations with the question, what do we do next? Where do we go now? We have this organization. We have people. We’ve got motivation. Where do we go? And one of the places I think they would like to go is further protections for embryos. That’s when I say IVF is probably safe because IVF is popular. But things like embryo research or various genetic tests on embryos to determine sex or disability status, those are things that I think the political forces energized by Dobbs are going to be heading toward.

Now, I think some of those people will head toward broad embryo protections that would affect IVF, but there’s a lot of evidence from even before the end of Roe, before Dobbs that those things don’t sell very well. Legislatures and, and people voting. I don’t particularly like messing with IVF. And in fact, immediately after this decision, some Democrats in Alabama have introduced a bill to carve out, create a safe harbor for IVF, and a Republican state senator has announced that he’s going to try to do the same thing. I don’t know whether his bill has been filed yet. 

So it’s not directly legally related to Dobbs. It is politically related to Dobbs, although I think this is going to prove to be an outlier because, a) legislatures and referenda are not going to be interested in restricting IVF, at least not very much, and b) other courts that have statutes that might be read this way, may actually take some notice of the pushback that’s come from this case. I mean, when, when Donald Trump endorses a, attacks a pro-life decision, you know, something odd is going on. So I think it’s unlikely to have much of an effect in other states. Other than in fact Alabama, let’s say, legislatively creates a safe harbor for IVF, which I think is, I don’t know Alabama politics, my guess is it’s deep red, but a lot of deep red people like IVF. 

Karlan: Hey, can I ask you a question about this, Hank? I have to say, my feeling about this is, the fact that people think that the embryos created by IVF are different than the embryos that are actually in a woman’s uterus, suggests that a lot of what’s going on here is about control over women. It’s not just over control over IVF, which is, you know, there’s, it’s hard to see that there’s a theoretical difference between these two embryos, but they’re willing to say if you want to create 20 embryos and then only bring two of those to term, and you’re using the freezer to do it, that’s okay. But if you have an, if you have an embryo inside you and you are not ready, willing to be a parent again, or a parent at this time, we’re going to force you to have a child. I mean, it just seems to me such hypocrisy. 

Greely: Pam I’m shocked, shocked that sexism is going on in this space. I mean, yeah, of course. Control over women is, I think, has long been a major driver in abortion legislation, judicial decisions, politics. I do think though, I mean, there’s a bit more of a difference. If you are a frozen embryo, even if you are transferred into … even if you’re thawed for potential transfer into a uterus to try to become a baby, there’s about a 1 in 6 chance that that will happen. If you’re actually an embryo growing inside a uterus, and you’ve gotten past the first month, there’s about an 80 percent chance you’re going to be a baby.

Karlan: If you’re at the stage of the transfer, it’s like the seventh day or something, right? Right. At that point, it’s not an 80 percent chance of there being a live birth.

Greely: No, it’s about a … if you’ve been thawed and you’re at day seven, it’s about a 20 percent chance. Varies in part on the age of the egg that was, of the woman whose egg you use, et cetera. But if you’re, say six weeks into the pregnancy, then it’s more like an 80 percent chance. If you’re two weeks into the pregnancy, it’s about a 30 percent chance. Three times as many fertilized eggs never become second trimester pregnancies as do. 

Karlan: The other thing, of course, is whatever, it’s not just the opinions of the Alabama court, it was like Senator Tuberville, you know, Senator Tuberville just seemed to be incapable of understanding the  … 

Greely: You could end that sentence right there. Senator Tuberville seems to be incapable of understanding. He wasn’t even a successful football coach. 

Karlan: Looking at this, it seems to me that this is, you know, the, the dog that caught the car it was chasing, that nobody expected when they said life begins at conception, that it was going to cause problems for, potentially cause problems for, people who want to have children.

Greely: I think that’s right. And now the dog has to decide, what am I going to do with this? Now the dog has to decide what in the world am I going to do with this thing? And what I will be watching most closely is what, if anything, the Alabama legislature does. I think there’s a very good chance, even if it is the hardest core pro-life legislature in the country, that it’s going to exempt IVF because lots of their, and lots of their constituents and note: IVF is deeply class based. Poor people don’t get to do IVF, even if they need IVF. Medicaid, the program for the poor, doesn’t cover IVF. Anybody who’s interested in IVF has money. They’re often well educated, middle class people in their 30s who want to have kids, who have some significant political clout. They’re also often elderly people. They don’t want to have kids, they want to have grandkids. Or they’ve already had kids or grandkids who are IVF babies. IVF, I think, has a lot of latent political support. 

The most I could see happening is … there is one state, Louisiana that back in 1986, for reasons that I’ve been trying to figure out, said that no embryos could be destroyed. So in Louisiana, all frozen embryos have to be kept frozen indefinitely. During Hurricane Katrina, a rescue boat was sent to rescue two tanks full of frozen embryos. With 20,000 frozen embryos, how many actual living human beings that boat could have rescued, we don’t know. However, there’s still IVF in Louisiana and its prices aren’t that much higher. So maybe states will say as a SOP to the people who really care about embryos, you can’t destroy them. But, that won’t significantly affect IVF. Maybe they’ll say you can only make two or three embryos at a time. Italy did that … said you had to transfer every embryo you made. After a few years, they pulled back from that. I think that would probably not fly. The reason people want to get a lot of embryos is because the patients want it. It’s not so much the clinics that care. So it’ll be interesting to see what happens. I do think the politics of this are radically different from the politics of abortion.

Karlan: There’s a bill pending in Congress, the Life at Conception Act, that 120-something Republican House members are currently supporting that declares that the term “human being” means at all stages of development, including the moment of fertilization. Do you think this is going to put some brakes on bills like that?

Greely: So what I think will happen with bills like that is there’ll be a carve out for IVF. And they’ll say, “except for embryos created as part of in vitro fertilization,” or “nothing here is intended to interfere with the normal processes of in vitro fertilization.” We actually saw that in an Oklahoma bill a few years ago and that’s my guess about where things will go out.

But I got to say, if the last seven years have taught me anything, it’s that my guesses about American politics are a lot worse than I thought they were. 

Ford: Wow. Well, it sounds like the upshot is that this may not be quite as bad for in vitro fertilization as many people thought. But it certainly suggests a clash between the politics on the one hand and perhaps the theological conceptions underlying the pro-life movement on the other. And it’ll be interesting to see how the pro-life movement kind of manages that tension, with on the one hand, the implication that you’d be potentially outlawing something that’s quite popular, but it does seem to follow from many of the arguments that are made against abortion. 

Greely: I would add to that, Rich, is it’s probably not as bad for IVF as people have initially thought and will increase some costs and liability in Alabama. But it could be bad for IVF if the Alabama Supreme Court takes some of the language in its own opinion, let alone that of Chief Justice Parker, and runs with that. This could lead to the death of IVF in Alabama, but I think that’s unlikely. 

Ford: Well, thank you, Hank Greely, for joining us today. This is Stanford Legal. If you’re enjoying our show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us to improve the show and for new listeners to discover the show.

I’m Rich Ford along with Pam Karlan. See you next time.