Abstract
In today’s post-Dobbs world, states may freely define fetal “persons” and those fundamental rights afforded to them, but not without consequence. The Supreme Court of Alabama’s groundbreaking decision in LePage v. Center for Reproductive Medicine, P.C., holding that frozen embryos are “children” under the Wrongful Death of a Minor Act, led fertility clinics and services across the state to close. These in vitro fertilization (IVF) providers feared liability exposure because their standard practices—including embryonic fertilization, testing, cryopreservation, and transfer—inevitably result in damage or death to embryos. The Alabama Legislature swiftly responded by enacting a law granting broad civil and criminal immunity to individuals or entities for death or damage to embryos related to IVF. However, this immunity scheme unconstitutionally deprives extrauterine embryos, now recognized as “persons” under the law, of their right to life at the state and federal level.
This Note explores the fetal personhood landscape as it relates to IVF, focusing on Alabama’s constitutional dilemma. It evaluates the novel due process and equal protection concerns inherent in a state recognizing extrauterine embryonic personhood while conferring immunity for death or damage to embryos. Ultimately, this Note compares three legislative proposals, rooted in alternative state approaches, for Alabama to simultaneously retain fetal personhood and access to IVF. It concludes that excluding extrauterine embryos from all relevant terms of personhood under the law is the only way to ensure constitutional compliance and protect IVF.
Recommended Citation
Dani Wasshausen, Alabama’s IVF Immunity Law: A Constitutional License to Kill?, 82 Wash. & Lee L. Rev. 1075 (2025).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss3/8