On February 16, 2024, the Supreme Court of Alabama issued its opinion for the case of LePage v. Center for Reproductive Medicine, P.C., holding that embryos are considered children. The case involved three couples who all underwent in vitro fertilization (“IVF”), and all three resulted in a healthy baby. As is standard for IVF, the process of extracting and fertilizing eggs resulted in more embryos than were implanted. This allows the individual undergoing IVF to have more children in the future without having to go through the hormone injections and extraction process again. The unused embryos are then cryogenically frozen and stored at sub-freezing temperatures to be preserved until they are used or destroyed. The three couples in the Alabama case had their unused embryos stored in an Alabama hospital, and in 2020, a patient of the hospital accessed the room. The patient opened the cryo-preservation unit, grabbed the embryos, and after burning their hand from the sub-freezing temperatures, dropped the embryos, causing them to be destroyed.
The three couples brought two suits against the hospital: one for negligence, and one under Alabama’s wrongful death of a minor statute. The second suit was dismissed at the trial court because the trial court held that the embryos were not minors under the statute. The three couples appealed the case to the State Supreme Court, where the Court held that the embryos are people and children, and therefore can be considered minors for purposes of the statute.
While this case was specific to an Alabama statute, it is possible that more state courts could follow in Alabama’s footsteps. Looking at Virginia law specifically, it is unclear whether there is an opening for a similar interpretation under Virginia’s wrongful death statute. Section 8.01-50 of the Code of Virginia provides for civil remedies for family members under a theory of wrongful death. Specifically, Section 8.01-50(B) provides for the “natural mother” to recover in the instance of “fetal death.” “Fetal death” is defined as, “death before the complete expulsion or extraction from its mother of a product of human conception, regardless of the duration of pregnancy.” The use of the term “product of human conception” and the provision that the length of the pregnancy is irrelevant seems to create an opening for IVF embryos to be included under this statute. However, there is also language in the statute that would be inconsistent with the inclusion of IVF embryos. For example, the definition of fetal death describes death before “the complete expulsion or extraction from its mother,” but if the embryo has never been in its mother, can its death be considered before the complete expulsion or extraction?
Even if the death of IVF embryos were included within the definition of fetal death, the current language of the statute would not allow anyone to bring such a suit. Section 8.01-50(B) states that the “natural mother” and only the natural mother can bring a suit for the wrongful death of a fetus. It then defines the natural mother as, “the woman carrying the child.” Again, if the embryo has not yet been implanted in the mother, and may never be implanted in the mother, can the mother fit the definition of natural mother as used here? It would appear not. Thus, there would be no one permitted to bring such a suit, even if it were allowed.
The options for such a suit may be limited in Virginia, but estate planners should be aware of what the Alabama ruling may mean for them. Most obviously, the new ruling considering IVF embryos to be “children” will have a serious impact on how estate planners define children in wills and trusts. Previously, the definition of children was so obvious, that it only needed to be laid out in complex situations such as blended families or where families are anticipating having more children in the future. But if IVF embryos are considered children, leaving the definition broad could have disastrous consequences for estate plans. Imagine, for example, that a couple undergoes IVF and has two healthy babies as a result. They keep several embryos frozen, as is standard for the process, but have no plans to use these embryos. When they die, their trusts create separate shares for each of their children. Technically, the embryos would be considered their children following the Alabama decision. Would the trustee be required to create a share for several groupings of eight cells that are completely unviable and will likely never develop further? This result seems too ridiculous to seriously consider, but it is a possibility under the current law. The same could result from an unclarified use of the term “descendants” in a parent’s will or trust when their child undergoes IVF. This is not even to mention the uncertainty on how this would interact with the rule against perpetuities. While the results seem too ridiculous to come to fruition, a cautious estate planner should implement a definition of children and descendants that makes it clear that frozen embryos are not included.
There is much to still be considered in this evolving area of law, and many questions remain unanswered. Unfortunately, clarity is not on the horizon. Because this ruling was the result of a state supreme court case and was an interpretation of state law, there is no clear path to appeal this decision to any federal court. It is now in the hands of the Alabama state legislature to clarify or even alter the decision through legislation.
At Schooley Law Firm, we pride ourselves on staying abreast of developments in the law, and we will continue to monitor these issues. Although there is no clear reason for Virginia to develop a similar law, we always have an eye toward potential pitfalls and problems when drafting our clients’ documents. If you or a family member have undergone IVF, contact us to discuss how we can help you protect the interests of your children and descendants.