Alabama Embryo Ruling Gives Boost to Fetal Personhood Movement

The Alabama Supreme Court’s ruling recognizing unimplanted human embryos as children underscores the anti-abortion movement’s efforts to build legal support for fetal and embryonic personhood.

Justices on the state’s top court ruled Feb. 16 that Alabama’s Wrongful Death of a Minor Act, which allows parents to recover punitive damages for their children’s deaths, includes the parents of unborn children, regardless of the ability to survive outside the womb.

The ruling sparked praise from anti-abortion groups who say human life begins at conception, while fueling opposition from abortion rights and fertility organizations who argue the decision will have a chilling effect on miscarriage management and in vitro fertilization.

Voters have repeatedly rejected ballot measures to establish fetal personhood, which analysts say is in part due to the impact such proposals would have on IVF and contraception. The US Supreme Court avoided weighing in on whether fetuses have constitutional rights in its decision in Dobbs v. Jackson Women’s Health Organization, which overturned the right to an abortion. The high court also declined in 2022 to take up a case from Rhode Island dealing with the level of protections offered to fetuses.

Legal analysts say the ruling out of Alabama could boost efforts by anti-abortion groups to pursue legal protections for embryos and fetuses, especially as Florida considers legislation that would allow parents to sue for damages for the wrongful death of an “unborn child” at any stage of development. The result of such efforts means the issue of fetal personhood is poised to come up again in states and federal courts, analysts say.

“Decisions like this help move these kinds of arguments from ‘off’ to ‘on the wall,’” said I. Glenn Cohen, a bioethics and health law professor at Harvard Law School.

“After the Supreme Court’s decision in Dobbs, this has become an important new goal for this movement: to recognize fetuses, and perhaps embryos, as persons under the 14th Amendment,” Cohen said.

Alabama Case

The top court in Alabama, where abortion is completely banned with limited exceptions, said in reviewing a motion to dismiss a case involving the destruction of embryos that unborn children have long been included in Alabama’s wrongful death act, and this applies even when an unborn child isn’t physically located in a uterus at the time they’re killed.

The ruling could be a “potentially dangerous deterrent to basic miscarriage management and standard fertility practice in the United States, driving defensive avoidance of everything from embryo testing, storage, and disposal to treating doomed pregnancies that risk a woman’s health or life,” said Dov Fox, director of the Center for Health Law Policy & Bioethics at the University of San Diego School of Law.

Denise Burke, senior counsel for the conservative law firm Alliance Defending Freedom, said after the ruling that “every unborn child deserves protection under the law.”

“Without life, you cannot have liberty or the pursuit of happiness,” Burke said.

Establishing fetal personhood “is the antiabortion movement’s ultimate goal, and Dobbs reinvigorated that effort,” said Greer Donley, an associate professor of law at the University Pittsburgh Law School. “We will see more of this both in state and federal court,” Donley said.

But Thomas Jipping, a senior legal fellow at the Heritage Foundation, disagreed the Alabama case relates to conservatives’ broader push for fetal personhood, arguing the matter before the court had to do solely with whether the wrongful death act “includes unborn children outside the womb as well as unborn children inside the womb.”

Regardless, the growth in technology like in vitro fertlization is “putting stresses on old legal concepts,” Jipping said in an interview.

“Maybe it is better that legislatures specify more of those kinds of things, and I expect that’ll be introduced in different states in the months and years ahead,” he added.

Florida, Others Weigh In

The Alabama case comes as fetal personhood debates have erupted in Florida in a battle over a proposed constitutional abortion amendment, as well as legislation aiming to protect life at any stage of development in wrongful death claims.

Florida Supreme Court Chief Justice Carlos G. Muñiz asked during Feb. 7 oral arguments on an amendment that would protect abortion in the state whether the Florida Constitution’s guarantee that all “natural persons” be “equal before the law” can apply to fetuses. Muñiz questioned whether justices must first decide this before determining whether the proposed amendment protecting abortion until fetal viability was misleading.

A month before, Florida Sen. Erin Grall (R) and Rep. Jenna Persons-Mulicka (R) introduced legislation in both chambers (SB 476, HB 651) that would revise Florida’s Wrongful Death Act to include parents of an “unborn child” in civil liability suits.

Fifteen other states, including Alabama, allow a cause of action for the wrongful death of an unborn child at any stage of development, according to an analysis of the Florida legislation. A total of 25 states allow for wrongful death suits of an unborn child starting at fetal viability, or around 24 weeks of gestation.

Future lawsuits seeking to clarify fetal personhood through wrongful death laws is a likely path forward for anti-abortion groups, Cohen said. Attempts to grant personhood rights to fetuses have so far failed via ballot initiatives in Colorado, Mississippi, and North Dakota.

“A long-term goal of this legal movement is to achieve via judicial recognition what has not been achievable by elections and ballot initiatives,” Cohen said.