My dear brothers and sisters in Christ, 

The Alabama Supreme Court issued a ruling on Feb. 16, 2024, declaring that “embryonic children,” that is, embryos created through in vitro fertilization (IVF) should be considered children. Writing the opinion of the majority in this ruling, Justice Jay Mitchell wrote, “This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act, … a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” 

As Justice Mitchell explained, “The plaintiffs in these consolidated appeals are the parents of several embryonic children, each of whom was created through in vitro fertilization (‘IVF’) and – until the incident giving rise to these cases – had been kept alive in a cryogenic nursery while they awaited implantation. … The plaintiffs’ IVF treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies. The plaintiffs contracted to have their remaining embryos kept in the Center’s cryogenic nursery, which was located within the same building as the local hospital. … The plaintiffs allege that the Center was obligated to keep the cryogenic nursery secured and monitored at all times. But, in December 2020, a patient at 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, killing them.”

The plaintiffs brought two lawsuits asserting claims under Alabama’s Wrongful Death of a Minor Act. In the alternative, the plaintiffs asserted common-law claims of negligence for which they sought compensatory damages, including damages for mental anguish and emotional distress.

In his analysis of the case, Justice Mitchell wrote, “All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a ‘human life,’ ‘human being,’ or ‘person,’ as those words are used in ordinary conversation and in the text of Alabama’s wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child’s development, regardless of viability. The question on which the parties disagree is whether there exists an unwritten exception to that rule for unborn children who are not physically located ‘in utero‘ – that is, inside a biological uterus – at the time they are killed. The defendants argue that this Court should recognize such an exception because, they say, an unborn child ceases to qualify as a ‘child’ or ‘person’ if that child is not contained within a biological womb.”

The Alabama Supreme Court rejected the defendants’ arguments for an exception, citing the Alabama Constitution of 2022, which “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.” As Justice Mitchell points out, “That section, which is titled ‘Sanctity of Unborn Life,’ operates in this context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children, whenever such construction is ‘lawful and appropriate.'”

The reasoning of the Alabama Supreme Court in protecting the lives of embryonic children is absolutely correct. In 1987, just a few years after in vitro fertilization was introduced, then-Cardinal Joseph Ratzinger, who would later become Pope Bendict XVI, wrote an Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day in his capacity as Prefect of the Congregation for the Doctrine of the Faith, in which he said, “The law cannot tolerate – indeed it must expressly forbid – that human beings, even at the embryonic stage, should be treated as objects of experimentation, be mutilated or destroyed with the excuse that they are superfluous or incapable of developing normally. … It is part of the duty of the public authority to ensure that the civil law is regulated according to the fundamental norms of the moral law in matters concerning human rights, human life and the institution of the family.”

All public authorities would do well to heed the wisdom contained in this instruction, which is still very pertinent today.May God give us this grace. Amen.