Pre-implantation Frozen Embryos are Persons: Focusing on the Alabama Supreme Court’s LePage v. Center for Reproductive Medicine, P.C. Decision

In February 2024, the Alabama Supreme Court held that frozen human embryos that had been cryopreserved at a fertility clinic were persons who were killed, when a third person managed to wander into the fertility clinic through an unsecured doorway, removed several embryos, which resulted in their destruction. With the court’s ruling that the frozen embryos were persons, same as any unborn children, regardless of their physical location – in utero or frozen in storage tanks – and also regardless of gestational stage, the progenitors/plaintiffs’ wrongful death suits were allowed. This decision sparked much debate and caused serious concerns in the field of reproductive medicine, especially with respect to assisted reproductive technology, because no court prior to this decision has held that extrauterine frozen embryos are persons warranting legal protection. Consequent grave concerns are warranted particularly for in vitro fertilization (IVF) patients and providers, with IVF having become an integral part of building families in modern society. Despite this widespread use of IVF, which typically results in multiple eggs being fertilized for couples undergoing IVF treatments with additional/spare embryos that remain frozen in storage for future implantation, legal status of these frozen embryos remains unclear in the United States. At times, they are treated as property, irreplaceable property which should be granted special respect than mere property, or on the other end of the spectrum, they are given outright personhood from the moment of fertilization in some states. Because embryos have not been uniformly or clearly classified, their fate, as well as, that of their progenitors remain in question in the event of their disposition in an unintended manner, such as, destruction and/or loss due to negligence or intention by a third party. Therefore, this article discusses different treatments that U.S. courts and legislatures have provided for frozen embryos thus far and seeks to provide meaningful insight not only for participants but also would-be participants in IVF programs, so that they correctly understand their interests and position, especially in an unfortunate event of negligent loss or destruction of embryos with potential life.