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21 J. Health & Biomedical L. 1 (2024)

handle is hein.journals/jhbio21 and id is 1 raw text is: 1 Journal ofHealth & Biomedical Law, XXI (2024): 001-026 © 2024 Journal ofHealth & Biomedical Law Suffolk University Law School Psychology and the Legislative Future of In Vitro Fertilization Kerry Lynn Macintosh* In LePage v. Centerfor Reproductive Medicine, P.C.,1 three couples that had undergone in vitro fertilization (hereinafter IVF) sued a fertility clinic and hospital after their stored embryos were lost in an accident.2 The plaintiffs included claims under Alabama's Wrongful Death of a Minor Act (hereinafter Act), which imposes liability for a wrongful act, omission, or negligence that causes the death of a minor child.3 The trial court dismissed the wrongful death claims, holding that the embryos were not children.4 The Alabama Supreme Court, however, reversed the dismissal, reasoning that the lost embryos qualified as unborn children within the Act.5 * Inez Mabie Distinguished Professor of Law, Santa Clara University School of Law. I am grateful to Professors Gary Spitko and June Carbone for their helpful comments on my draft. I also thank Thomas Deguzman, Research Librarian, Wendie Beddingfield, J.D. 2023, and Connor Haney and Nicholas Voytilla, J.D. 2025, of Santa Clara University School of Law for their capable research assistance. Finally, I thank the Journal of Health and Biomedical Law staff and editors, who made many valuable contributions to this Article. 1 See No. SC-2022-0515, SC-2022-0579, 2024 Ala. LEXIS 60, at *1 (Ala. 2024). 2 See id. at *3. In 2020, a hospital patient at the Mobile Infirmary Medical Center wandered into The Center for Reproductive Medicine through an unsecured door and entered a room of storage tanks containing IVF embryos. Id. When she grabbed receptacles containing embryos, extreme cold seared her hand, and she dropped the receptacles, thereby destroying the embryos. Id. 3 See ALA. CODE § 6-5-391 (1975). 4 See LePage, 2024 Ala. LEXIS 60, at *4-5 (outlining finding of trial court on wrongful death claims). The trial court further determined that Alabama's restriction on recovery for compensatory damages for loss of human life precludes plaintiffs' negligence and wantonness claims. Id. at *5. s Id. at *9, *20. As the Court explained, although the Act did not define the terms child or minor child, case precedent held it applied to unborn children. Id. at *9-10. Thus, the Court framed the issue as whether the Act contains an unwritten exception to that rule for extrauterine children - that is, unborn children. Id. at *1. Further, the Alabama State Constitution acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate. ALA. CONST. art. I, § 36.06(b) (2022). The Court reasoned that this constitutional provision functioned as a canon of construction; thus, it must construe the Act in a manner that protected the rights of born and unborn children equally. LePage, 2024 Ala. LEXIS 60, at *12. The Act did not contain an exception for extrauterine children, and the Court declined to infer one based on policy concerns; if its decision made IVF more expensive or cryopreservation more complicated, that was for the Legislature to resolve. Id. at *17-18.