LePage v Center for Reproductive Medicine, P.C. SC-2022-0515 Supreme Court of Alabama Parker, CJ & SCJ; Mitchell, Wise, Bryan, Shaw, Mendheim, Sellers & Cook, SCJJ February 16, 2024 Reported by Faith Wanjiku and Betty Nkirote Download the Decision

Constitutional Law-Declaration of Rights-right to life-sanctity of unborn life-where the plaintiffs were parents of embryonic children created through in vitro fertilization-where the plaintiffs’ embryos were kept alive in the defendant’s cryogenic nursery while awaiting implantation-where a patient wandered into the defendant’s cryogenic nursery and removed several embryos thereby causing their deaths-where the plaintiffs argued that in vitro embryos fit within the definition of a child under the Wrongful Death of a Minor Act-where the plaintiffs brought their claims under the Wrongful Death of a Minor Act- whether an in vitro embryo fit within the definition of a person or child under the Wrongful Death of a Minor Act-whether the loss of an in vitro embryo could give rise to a wrongful death claim-Constitution of Alabama, 2022 section 36.06

Brief facts

The plaintiffs lodged the instant appeals challenging the decision of the trial court which had held that in vitro embryos did not fit within the definition of a person or child and that their loss could not give rise to wrongful death claims.

The plaintiffs in the instant appeals were the parents of several embryonic children created through in vitro fertilization (IVF) and who until the incident giving rise to the instant cases -had been kept alive in a cryogenic nursery while they awaited implantation. The plaintiffs had contracted the defendant to have their embryos kept in the defendant’s cryogenic nursery which was located within the same building as the Mobile Infirmary Medical Center (the hospital).

In December, 2020, a patient in the hospital managed to wander into the Center's fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient's hand, causing the patient to drop the embryos on the floor and thereby killing them.

The plaintiffs argued that the hospital had an obligation to keep the cryogenic nursery secure and monitored at all times. They brought their claims under the Alabama’s Wrongful Death of a Minor Act, 1872 (Wrongful Death of a Minor Act). In the alternative, the plaintiffs asserted their claims under the common law of negligence. They sought compensatory damages including damages for mental anguish and emotional distress.

Issues
  1. Whether an in vitro embryo fit within the definition of a child under the Wrongful Death of a Minor Act.
  2. Whether the loss of an in vitro embryo could give rise to a wrongful death claim.

Relevant provisions of the law

Constitution of Alabama, 2022 Section 36.06-Sanctity of unborn life "(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life. "(b) This state further 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." Held by majority
  1. The text of the Wrongful Death of a Minor Act did not exclude extrauterine (situated or occurring outside the uterus) children from the Act's coverage. Unborn children were children under the Act without exception based on developmental stage, physical location, or any other ancillary characteristics. The Wrongful Death of a Minor Act allowed parents of a deceased child to bring a claim seeking punitive damages when the death of a minor child was caused by the wrongful act, omission, or negligence of any person, provided that they did so within 6 months of the child’s passing. The Wrongful Death of a Minor Act did not define either a child or minor child. However, the court had held that an unborn child qualified as a minor child under the Wrongful Death of a Minor Act regardless of that child's viability or stage of development.
  2. Courts interpreting statutes were required to give words their natural, ordinary, commonly understood meaning unless there was some textual indication that an unusual or technical meaning applied. In the instant case, the parties did not point the court to any such indication which reflected the overwhelming consensus in Alabama that an unborn child was just as much a child under the law as he or she was a child in everyday conversation.
  3. Even if the word child were ambiguous, the Alabama Constitution would require courts to resolve the ambiguity in favor of protecting unborn life. Section 36.06(b), of the Constitution acknowledged, declared and affirmed that it was the public policy of the state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate. That section, which was titled Sanctity of Unborn Life, operated in the instant context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that protected the rights of the unborn child equally with the rights of born children whenever such construction was lawful and appropriate.
  4. The phrase minor child meant the same thing in the Wrongful Death of a Minor Act as it did in everyday parlance, an unborn or recently born individual member of the human species from fertilization until the age of majority. Nothing about the Act narrowed the definition of a child to unborn children who were physically in utero. Instead, the Act provided a cause of action for the death of any minor child without exception or limitation.
  5. The defendants interpreted the definition of a child in the Wrongful Death of a Minor Act to precisely mirror the definition of person in the criminal homicide laws. However, the court’s jurisprudence observed that it would be perverse for Alabama law to hold a defendant criminally liable for killing an unborn child while immunizing the defendant from civil liability for the same offense. The reason that such a result would be anomalous was because criminal liability was by its nature more severe than civil liability. As such, the set of conduct that could support a criminal prosecution was almost always narrower than the conduct that could support a civil suit.
  6. Although it would be unfair for a tortfeasor to be subject to criminal punishment but not civil liability, for fetal homicide, it simply did not follow that a person not subject to criminal punishment under the Homicide Act ought not to face tort liability under the Wrongful Death of a Minor Act. That argument followed to its conclusion, would prohibit wrongful-death actions arising from a tortfeasor's simple negligence something that the court never held to be criminally punishable but which often formed the basis of wrongful-death actions.
  7. The text of the Wrongful Death of a Minor Act was sweeping and unqualified. It applied to all children, born and unborn without limitation. It was not the role of the court to craft a new limitation based on its own view of what was or was not wise public policy. That was especially true where as in the instant case, the People of Alabama had adopted a Constitutional amendment directly aimed at stopping courts from excluding unborn life from legal protection.

Per Sellers, SCJ (dissenting opinion)

  1. The instant cases were not about when life begun, nuances of statutory construction or the definition of minor child or person. Contrary to the main opinion, there was no black letter law in Alabama or any other state to help the court. Regrettably, the instant cases used the specter of destroying human life to craft a narrative involving the protection of unborn children to cynically inflame worries about the sanctity of life under Alabama law. In reality, the instant cases concerned nothing more than an attempt to design a method of obtaining punitive damages under the Wrongful Death of a Minor Act by concluding that frozen embryos which were negligently destroyed were entitled to the same protections as a fetus inside a mother's womb.
  2. Passing the Brody Act, No. 2006-419 (Brody Act) which was a part of Alabama’s criminal homicide statutes and employing any sequence of linguistic gymnastics could not yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of person much less the definition of minor child. It was clear from the four corners of the Brody Act that the legislative intent was to protect unborn life, regardless of viability from violence perpetrated against the mother.
  3. Previously, to impose criminal sanctions for the murder of an unborn child was impossible since the definition of a person when referring to the victim of a criminal homicide meant a human being who had been born and was alive at the time of the homicidal act. However, the Brody Act eliminated not only that born-alive requirement but also any viability threshold to create the bright-line rule that, if a woman was pregnant, an embryo in utero received all the protections that a viable life would be afforded under the laws of Alabama.
  4. Interpreting the Brody Act as asked to do in the instant case was a judgment call. The court ought to determine whether to constrain itself to the clear intent of the Act or whether to inform its interpretation using extraneous means to reach a result clearly contrary to anything the Act ever intended. The majority's conclusion that an action could be maintained under the Wrongful Death of a Minor Act for the negligent destruction of an in vitro embryo, a textual conclusion purportedly reached by utilizing the Brody Act's definition of "person" to inform the Wrongful Death of a Minor Act's definition of minor child, was clearly contrary to the intent of the legislature. To equate an embryo stored in a specialized freezer with a fetus inside of a mother was engaging in an exercise of result-oriented, which the court was unwilling to entertain.
  5. The court had no authority to determine whether legislation concerning or relating to unborn life defied section 36.06 of the Constitution. That authority only lay with the people of Alabama acting through their elected representatives. Any public-policy ramifications of any decision in the instant cases were outside the purview of the Court and they were more appropriately reserved for the legislature. In the event the legislature wished to include in vitro embryos in the definition of minor child, it could easily do so. Absent any specific legislative directive, the court ought not to read more into a legislative act than the legislature did so itself.

Per Cook, SCJ (dissenting opinion)

  1. The Wrongful Death of a Minor Act did not define the term minor child. Although the Act was last amended in 1995, the phrase when the death of a minor child was caused by the wrongful act of any person had remained unchanged from the Act's initial inception in 1872 and no change had ever been made to it bearing on the meaning of the term minor child."
  2. With no definition of the term minor child having been provided by the Legislature in the Wrongful Death of a Minor Act, the court ought to decide how to interpret the meaning of that term as used in the Wrongful Death of a Minor Act. The court believed in originalism, which meant that it ought to apply the original meaning of the words as those words were used in the Act when it was passed in 1872. In other words, the court applied the original public meaning of the words.
  3. The common law answered the question whether the term minor child as used in the Wrongful Death Act was broad enough in 1872 to reach a frozen embryo today. In Alabama, it was a well-settled principle of law that the common law governed unless expressly changed by the statutes passed by the legislature. The court had repeatedly held that statutes were construed in reference to the principles of the common law and it was not to be presumed that there was an intention to modify or to abrogate it further than could be expressed, or than the case could absolutely require.
  4. There was no doubt that the common law did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-doubtful implication. In fact, for 100 years after the passage of the Wrongful Death Act, the case law did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant much less a frozen embryo was a minor child who could be killed.
  5. The court’s jurisprudence made it clear that common law was a substantive rule of law --both in the criminal context and in the civil context. In the instant appeals, the basis for the common law rule that an unborn infant could not be killed was not at issue. Even if the court was to assume that the basis for that common law rule was unwise, it was still the rule in effect at the time the Wrongful Death of a Minor Act was passed and therefore was part of the original public meaning of that Act unless the legislature amended it.
  6. The court could not ascertain the meaning of disputed terms merely by plugging a string of words into a dictionary and running with the first results that came up. Instead, words were given meaning by their context. In the instant appeals, the context indicated that the main opinion was mistaken. The cited dictionary did not indicate that the term child encompassed children in the womb. Instead, it indicated the opposite. The same first definition of child also stated the term was applied to infants from their birth but the time when they ceased ordinarily to be so called was not defined by custom.
  7. Concluding that an unborn child could be regarded as a child was a mere legal fiction which had not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth. The court had made it clear that statutes in derogation or modification of the common law were presumed not to alter the common law in any way not expressly declared. Thus, any update to the Wrongful Death of a Minor Act ought to be made by the legislature and not the court.
  8. The main opinion’s reasoning that the definition of person in Alabama's criminal-homicide statutes provided a floor for the definition of child in wrongful-death actions and not a ceiling, was also illogical given the changes brought about by the Brody Act. The legislature made an intentional decision to extend the criminal-homicide statutes beyond the common law when it passed the Brody Act. In sharp contrast, the legislature had never extended the relevant portion of the Wrongful Death Act despite the passage of 150 years. Yet, the main opinion now decided that the definition in the unamended civil statute went further than the definition in the criminal-homicide statutes that the legislature did extend.
  9. Based on the contents of the Brody Act and its title, it seemed quite clear to the court that the death of Brody Parker, an unborn in utero child, spurred the legislature to change the definition of a person in the criminal-homicide statutes from the common-law meaning to a meaning that now allowed a defendant to be charged with murder when he or she caused the death of a human being in utero. In other words, the textual purpose was to expand the definition of person to cover victims like Brody Parker who died in utero. The case law made it clear that the court ought to presume that the terms of a statute meant what they were designed to effect and the court was not allowed to enlarge them by construction.
  10. The common law definition of a person remained except to the extent that it had been expressly changed by the Brody Act to add an unborn child in utero to the definition of person in Alabama's criminal-homicide statutes. To conclude otherwise would be inconsistent with the case law which held that statutes were construed in reference to the principles of the common law and it was not to be presumed that there was an intention to modify, or to abrogate it, further than could be expressed or than the case could absolutely require.
  11. Were the court to adopt the plaintiffs' proposed construction of the definition of person in the criminal-homicide statutes, the court risked criminalizing the IVF process. Criminal statutes were to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Thus, if there were any reasonable doubts as to the statutory construction of the criminal-homicide statutes, the court would strictly construe the definition of person in favor of those persons sought to be subjected to their operation. For all those reasons, it seemed clear to the court that a frozen embryo did not fit within the statutory definition of person as that term was used in Alabama's criminal-homicide statutes and thus could not be a minor child under the Wrongful Death of a minor Act.
  12. The Wrongful Death of a Minor Act was passed in 1872 whereas section 36.06 of the Constitution was passed in 2018. Section 36.06 of the Constitution could not retroactively change the meaning of words passed in 1872. The legislature in 1872 had no idea about a constitutional amendment that would be passed 150 years later. If the legislature wanted to change the words in the statute, they ought to have changed the words in the statute.
  13. The defendants claimed that the frozen embryos were not a minor child. On the other hand, they claimed that because the frozen embryos were lives, no common-law claim such as claims of negligence or wantonness was available because no damages were recoverable. However, such a rule could allow the destruction of life with no consequence, even for someone who committed an intentionally wrongful act. IVF was used by many parents-to-be in dire circumstances for instance, because of reproductive issues caused by cancer, age or infertility. Their frozen embryos were undeniably precious. Thus, the argument by the defendants had the potential to be both unjust and to incentivize bad conduct.

Appeal allowed; Sellers & Cook, SCJJ dissenting.

Relevance to Kenyan jurisprudence

In Kenya, the life of the unborn child is protected by both the Constitution of Kenya and statute law. The Constitution recognizes that life begins at conception and makes it clear that a person shall not be deprived of life intentionally, except to the extent authorised by the Constitution or other written law. Article 26 of the Constitution states in this regard thus:

26-Right to life

1. Every person has the right to life. 2.The life of a person begins at conception. 3. A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. 4. Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
In PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR), the court observed as follows:
The impugned provisions in this petition suer from lack of guidelines relating to privacy and on how to reach a trained health professional as stipulated in article 26(4) of the Constitution. The way I see it, the protection of unborn life is an important motive for restricting abortion, and the Kenyan Constitution at article 26(4) equates a pregnant woman’s life with continued foetal development thus making it as the single greatest impendent to medical abortion services.

Further, the Penal Code, Cap 63 Laws of Kenya (Penal Code) prohibits abortion under sections 158, 159 and 160. These sections provides as follows:

Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.

Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years. Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.

Consequently, as demonstrated above, the law in Kenya protects unborn life by prohibiting/criminalizing abortion. However, the law does not draw any distinction in regard to the physical location of the unborn child. Thus, this decision is relevant to Kenyan jurisprudence as it is an emerging issue globally on reproductive issues and could guide such other circumstances in future.