Wrongful Death of a Minor Act Includes Extrauterine Embryos


LePage, etc. and Fonde, etc., et al. v. The Center for Reproductive Medicine, PC, et al., [Ms. SC-2022-0515 and SC-2022-0579, Feb. 16, 2024] __ So. 3d (Ala. 2024). The Court (Mitchell, J.; Wise and Bryan, JJ., concur; Parker, C.J., concurs specially, with opinion; Shaw, J., concurs specially, with opinion, which Stewart, J., joins; Mendheim, J., concurs in the result, with opinion; Sellers, J., concurs in the result in part and dissents in part, with opinion; Cook, J., dissents, with opinion) reverses the Mobile Circuit Court’s dismissal of wrongful death claims and alternative common law negligence and wantonness claims asserted by three families who sued their IVF clinic and the hospital where the clinic was located after a patient of the hospital went into the clinic’s freezers and picked up a container of embryos and dropped the container onto the floor, which killed all of the embryos it held.

The Court holds “[t]he Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation. That language resolves the only issue on appeal with respect to the plaintiffs’ wrongful-death claims and renders moot their common-law negligence and wantonness claims.” Ms. *7. The Court emphasizes “the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection. Art. I, § 36.06, Ala. Const. 2022.” Ms. *22.

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