Latest fertility ruling – yes, yes, no, no!

By Arlene Violet, Esq.
Posted 2/26/24

Three couples sued the Center for Reproductive Medicine, a fertility clinic in Alabama, for inadvertently destroying their embryos. An interloper got into   the storage facility, opened up a …

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Latest fertility ruling – yes, yes, no, no!


Three couples sued the Center for Reproductive Medicine, a fertility clinic in Alabama, for inadvertently destroying their embryos. An interloper got into  the storage facility, opened up a unit that housed their frozen embryos, and accidentally dropped them, destroying them.

The couples sued for damages under the state’s Wrongful Death Statute, saying that the storage area should have been secured, so the facility was negligent, and it caused the death of their children. To sue thereunder, the Wrongful Death  statute would only apply to a person. The state’s highest court held that embryos in a lab are children, so the lawsuit could proceed.

The chief judge intoned in the decision, “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” invoking the book of Genesis, quoting the prophet Jeremiah, and citing 16th- and 17th-century theologians. “Even before birth,” he went on, “all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.”

So, is this decision a step in the right  direction?

YES if you are someone who subscribes to the fact that your brand of Christianity must be applied to all decisions made in the United States. The union of sperm and egg in a petri dish trumps the personhood of a mother and her right to choose  or disallows a couple who divorce and who as a result of that break-up want their stored embryos  destroyed as part of a divorce settlement.

YES if you think that the best practices of egg retrieval should continue to be seven or 18 eggs in case the first embryonic transfer doesn’t work, which is usually the case since the embryo has to also survive a cryogenic thaw.

If, however, ultimate pregnancy is successful  on the first try, then the couple should pay storage fees forever of those not needed. Query, though, whether the next law case would be that you can’t let those “babies” stay in a frozen state since they have a right to be born so the embryos have to be planted in the mother’s womb to give them a chance at life.

NO if you think that the union in the petri dish is not yet a child since, well, it is still in a petri dish.

NO if you think IVF is a gauntlet of effort and that you don’t lose a child every time the fertilization didn’t work because of myriad reasons.

Here is how I answer this question. Anti-abortion activists have nothing to cheer about, since the ramifications of this decision will sharply limit the number of embryos created, thereby curtailing pregnancies because of the fear of storing eggs ad infinitum. Fertility clinics will require multiple expensive attempts, with fewer eggs harvested, in order not to be charged criminally or civilly.

The Alabama decision treats a petri dish as a person, while treating the mother as an incubator, i.e. less of a person. Science is damned in favor of a creeping theocracy in this country, despite the proverbial separation of church and state.

Most directly, the Alabama decision transmutates what actually is a hope, a dream, of a future child,  into a fantasy that you lost a child who was in a petri dish before conception if dropped by accident.

How sad.

Arlene Violet is an attorney and former Rhode Island Attorney General.

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