In February 2024, the Alabama Supreme Court became the first court in the country to hold that frozen embryos are “minor children” under a state wrongful death statute. The Alabama frozen embryo wrongful death ruling, formally titled LePage v. Center for Reproductive Medicine, extended Alabama’s Wrongful Death of a Minor Act to embryos regardless of developmental stage or physical location, including those stored in cryogenic tanks at fertility clinics.1Justia. LePage v. Center for Reproductive Medicine, P.C. The decision reshaped how embryos are treated under Alabama civil law and set off a chain of legal and legislative reactions that are still working through the system.
What Happened in the LePage Case
In December 2020, a patient at a Mobile, Alabama hospital wandered into a cryogenic storage area at an attached fertility clinic, removed a container of frozen embryos, and dropped them after the extreme cold burned his hands. The embryos were destroyed. Three couples who had created those embryos through in vitro fertilization sued the clinic and hospital for wrongful death under Alabama’s Wrongful Death of a Minor Act.1Justia. LePage v. Center for Reproductive Medicine, P.C.
The trial court dismissed the wrongful death claims, concluding that frozen embryos did not qualify as “persons” or “children” under the statute. The couples appealed directly to the Alabama Supreme Court.
The Statute the Court Interpreted
Alabama’s wrongful death statute for minors allows a parent to file a civil lawsuit when “the death of a minor child is caused by the wrongful act, omission, or negligence of any person.” The statute, codified at Section 6-5-391 of the Alabama Code, gives standing to the father, the mother, or the child’s personal representative if both parents decline to sue or fail to act within six months.2Alabama Legislature. Alabama Code 6-5-391 – Wrongful Death of Minor
The statute itself does not define “minor child.” Earlier Alabama law was updated in the twentieth century to reach unborn children after a case in which a woman was injured and the fetus she was carrying died. No prior case had tested whether “unborn children” included embryos that existed outside a human body entirely.
One feature of Section 6-5-391 matters a great deal here. Damages under the statute are purely punitive, meaning they are designed to punish the wrongdoer rather than compensate for economic losses like lost wages or future earnings. That makes the statute potent even when the decedent had no earnings history, which will always be the case with an embryo.
How the Alabama Supreme Court Ruled
The majority held that Alabama’s Wrongful Death of a Minor Act applies to “all unborn children, regardless of their location,” whether inside a uterus, in a petri dish, or in a cryogenic storage tank.1Justia. LePage v. Center for Reproductive Medicine, P.C. The court concluded that “minor child” encompasses all unborn life, including embryos that have never been implanted, recognizing frozen embryos as legal persons for wrongful death purposes from the moment of fertilization.3Legal Information Institute. LePage v. Center for Reproductive Medicine, P.C. (Ala. 2024)
The ruling sent the case back to the trial court, where the couples could now pursue their wrongful death claims against the clinic and hospital.
The IVF Disruption and the Legislature’s Narrow Fix
The decision caused immediate disruption across Alabama’s fertility industry. IVF routinely involves creating multiple embryos, freezing extras, and eventually discarding those that won’t be used. Under the court’s reasoning, any destroyed embryo could trigger a wrongful death claim, whether the destruction resulted from a lab accident, a deliberate decision not to implant, or routine disposal. Several Alabama IVF clinics paused operations while they assessed their legal exposure.
The Alabama legislature responded within weeks, passing a law granting civil and criminal immunity to anyone providing IVF-related goods or services for the destruction of or damage to embryos. The law stabilized fertility clinics, but it pointedly avoided the bigger question of whether embryos should be treated as children under Alabama law at all. The legislature carved out a narrow exception for IVF without disturbing the broader personhood logic of the court’s ruling. That logic remains intact and available for other types of cases.
Why the Ruling Reaches Past IVF
If an embryo in a storage tank qualifies as a “minor child,” the same logic could apply to an embryo or fetus at any stage of pregnancy. That is where the ruling becomes consequential well outside the fertility clinic.
Alabama had already seen attempts to use wrongful death law in the abortion context. In 2019, a man filed a wrongful death lawsuit on behalf of “Baby Roe” against an abortion clinic after his girlfriend terminated a pregnancy. A lower court initially allowed the case to proceed, but the Alabama Supreme Court dismissed it on procedural grounds. Several justices used the opinion to call for overturning Roe v. Wade, signaling where the court was heading years before LePage.
Legal scholars have noted that over forty states have wrongful death statutes interpreted or amended to cover fetal death in some form. What makes LePage unusual is how far it extends personhood: to the earliest possible stage, and to embryos that have never existed inside a human body.
The practical concern is straightforward. Wrongful death claims are civil suits that any individual with legal standing can file. They do not require a prosecutor to act. A father or, potentially, another family member recognized under the statute could bring a claim against anyone allegedly responsible for ending a pregnancy, depending on how the state’s wrongful death law defines standing.
How Dobbs Made This Possible
The ruling would not carry the same weight without the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. The Dobbs majority held that “the Constitution does not confer a right to abortion” and returned the authority to regulate abortion entirely to state legislatures.4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
Before Dobbs, federal constitutional protections set a floor that limited how aggressively states could treat abortion under civil or criminal law. After Dobbs, state abortion regulations receive only rational-basis review, the most deferential standard of constitutional scrutiny. A state just needs a rational reason for its law, and courts will generally defer to the legislature’s judgment.4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
Alabama’s criminal abortion ban, enacted in 2019, makes performing an abortion a Class A felony but targets providers, not pregnant individuals. The wrongful death statute operates on a completely different track. It is a civil claim, not a criminal charge, and it does not require a prosecutor or law enforcement to get involved. The combination of Dobbs removing federal constitutional limits, LePage extending personhood to embryos, and a wrongful death statute that allows private lawsuits creates a legal architecture that did not exist before 2024.
Fetal Personhood in Other States
Alabama’s ruling sits at the extreme end of a broader movement. Multiple states have proposed or implemented legislation recognizing fetal personhood, including Georgia, Colorado, and Iowa. The legal consequences vary depending on where the personhood language appears in a state’s code.
A fetal personhood provision in a criminal statute primarily affects prosecutors and people who harm pregnant women through violence or reckless conduct. A personhood provision in civil wrongful death law, as Alabama now has through judicial interpretation, creates the possibility of private lawsuits that any eligible family member can pursue. Criminal prosecution requires state resources, political will, and proof beyond a reasonable doubt. A civil wrongful death suit requires only a plaintiff, an attorney, and proof by a preponderance of the evidence.
States vary widely in how their wrongful death statutes treat the unborn. Some limit coverage to viable fetuses. Others extend it to any point after conception. A few, like Alabama after LePage, now extend it to embryos that have never been implanted. The specific language of each state’s statute, combined with how courts have interpreted it, determines whether the LePage theory could gain traction outside Alabama.
Shield Laws and Federal Drug Approval
As some states expand embryo and fetal protections, others have moved the opposite direction. As of 2025, eighteen states have enacted some form of shield law designed to protect reproductive healthcare from out-of-state legal interference. These laws generally block out-of-state subpoenas, protect medical records from disclosure to investigating states, allow countersuits by people targeted by out-of-state litigation, and refuse extradition for care that is legal in the shield state. Whether shield-state protections would hold up against a restrictive state’s enforcement efforts is a question courts have not fully answered.
Medication abortion also remains federally approved. The FDA approves mifepristone in combination with misoprostol to end a pregnancy through ten weeks of gestation.5Food and Drug Administration (FDA). Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation A 2022 Department of Justice opinion concluded that the Comstock Act, an 1873 law prohibiting the mailing of anything intended for producing an abortion, does not prohibit mailing mifepristone or misoprostol when the sender does not intend the recipient to use them unlawfully. As of early 2026, that interpretation has not been rescinded, and the DOJ has asked courts to pause or dismiss lawsuits by several states seeking to reinstate stricter FDA regulations.
The tension between federal drug approval and state wrongful death law is real and unresolved. A medication that is federally legal to prescribe, dispense, and mail could still form the basis of a state wrongful death claim if the state treats the resulting embryo as a legal person. No court has squarely addressed what happens when a federally approved drug regimen leads to a state wrongful death suit, and the answer may depend on whether federal preemption doctrines apply to this specific collision between federal regulatory approval and state tort law.