Three couples whose frozen embryos were destroyed when a wandering Mobile hospital patient dropped the specimens can sue for wrongful death because the embryos were “children,” the Alabama Supreme Court ruled Friday in reversing a judge’s decision to throw out the case.
The Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” wrote Alabama Supreme Court Justice Jay Mitchell. “[T]he Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation.
Article about the lower court ruling
“It is clear to this court, based on Alabama’s statutes and case law, that a strong belief in the sanctity of life has not prevented the Alabama Supreme Court from recognizing and upholding our legislature’s clear pattern of using the term
“in utero” [emphasis original] when defining the unborn or minor child, including in the context of a wrongful death case,” Phillips wrote in her ruling Tuesday.
AL Supreme Court ruling
I gather the thrust of it is that the law says 'child', we've previously ruled that that includes 'unborn child', and that fits these frozen embryos.
If they'd left it there, it might not have had such a whiff of violating church-state separation, but the chief justice's special concurrence wanders off to quote Aquinas, Calvin, van Mastricht, and the Bible (KJV).
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama [the state constitution literally has a "Sanctity of Life" amendment added in 2018] encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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.
The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: "Before I formed you in the womb I knew you, Before you were born I sanctified you." Jeremiah 1:5 ... Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image.
From some of the dissents, pointing to originalism
In my judgment, the main opinion's view that the legal conclusion is "clear" and "black-letter law" is problematic because when the Wrongful Death of a Minor Act was first enacted in 1872, and for 100 years thereafter, IVF was not even a scientific possibility.
at the time the Wrongful Death of a Minor Act was enacted -- and long thereafter -- the term "unborn child" was only understood to refer to a child within its mother's womb.
It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it. It is also not our role to consider whether a law has become "stale" or "shelfworn."34 This is the same error made by those commentators who advocate for a living constitution and argue that the words in our Constitution should evolve over time.35
Instead, it is the role of the Legislature to determine whether a law is outdated (for instance, because of new technology) and, thus, requires updating. If our Court does "breathe life" into a law by expanding its reach, we short-circuit the legislative process and violate the Alabama Constitution's separation-of-powers clause.
