Health Law

Fourth couple sues Alabama clinic at heart of IVF court ruling

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In vitro fertilization medications

In vitro fertilization medications. (Carolyn Van Houten/The Washington Post)

A Florida couple has sued the Alabama in vitro fertilization (IVF) clinic at the heart of the state’s consequential state Supreme Court ruling that frozen embryos are children, becoming the fourth set of plaintiffs to pursue a wrongful-death claim over destroyed frozen embryos from a 2020 incident that in recent weeks has thrown the state’s legal landscape for IVF into uncertainty.

A complaint was filed Thursday in Mobile County Circuit Court against the Mobile Infirmary Medical Center and the Center for Reproductive Medicine, almost two weeks after the Alabama Supreme Court issued a ruling on a 2021 complaint that frozen embryos are children for the purposes of a wrongful-death suit.

The ruling quickly opened to the door to wide-ranging concerns among doctors and IVF patients that they could be held liable for destroying frozen embryos, either by accident or as part of the normal course of IVF treatment.

Three couples who were storing frozen embryos at the clinic when they were destroyed in 2020 had filed separate lawsuits that were combined before the state Supreme Court. Its decision reversed a lower court ruling that dismissed the wrongful-death claims and said frozen embryos that had not yet been implanted did not meet the definition of a child.

The latest lawsuit identifies a fourth couple who lost embryos in that same 2020 incident and outlines the same basic facts as the preceding wrongful-death suits.

According to the complaint filed Thursday, Raymond Lee and Sarah Brackett of Florida lost at least three frozen embryos in December 2020 when a hospital patient at the Mobile Infirmary Medical Center wandered through an unlocked door to the Center for Reproductive Medicine facility, accessed the room where frozen embryos were cryopreserved, removed a container of embryos in liquid nitrogen and then dropped it on the floor.

The Bracketts were patients of CRM, having previously used IVF to conceive twins, according to the complaint. The couple and their lawyers did not immediately respond to requests for comment Tuesday.

Few details about the 2020 incident that eventually precipitated the seismic Alabama ruling are known, including the identity of the wandering hospital patient or the total number of patients affected and frozen embryos lost.

The Bracketts’ wrongful-death lawsuit could play out on a more straightforward timeline in light of the state Supreme Court ruling. It is unclear whether the hospital and CRM will apply for a rehearing; attorneys for the defendants did not respond to requests for comment early Tuesday.

Within days of the state Supreme Court’s Feb. 16 ruling, nearly half of Alabama’s IVF clinics paused procedures in some way, with some clinics stopping all treatments while others continued with everything but embryo disposal.

The court’s decision quickly rippled out beyond Alabama: Reproductive rights advocates and groups on the political left criticized the court for interfering in private medical decisions and lasered in on religious rhetoric from Chief Justice Tom Parker, a conservative justice whose legal writings laid the groundwork for antiabortion court decisions.

“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” Parker wrote in the February ruling. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

The Alabama court’s ruling was controversial among conservatives. Former president Donald Trump distanced himself, calling on state politicians “to act quickly to find an immediate solution to preserve the availability of IVF in Alabama.” The National Republican Senatorial Committee urged GOP candidates nationwide to back IVF, and a number of religiously conservative women spoke out to defend IVF as well.

But some antiabortion groups hailed the ruling, particularly those interested in expanding the definition of personhood to pre-viability. Lawmakers in Florida’s Republican-controlled legislature drafted a bill allowing wrongful-death claims for unborn children in the wake of Alabama’s ruling, only to scrap the measure amid pushback.

As upheaval from the Alabama ruling continues to play out in the state, lawmakers scrambled to pass legislation to protect IVF providers and patients from criminal or civil liability if embryos they create are subsequently damaged or destroyed. Legislators are aiming to pass the bill Wednesday and send it to Gov. Kay Ivey (R), who has said she will sign it.

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