Alabama couples drop wrongful death lawsuit over destroyed IVF embryos

Two couples behind a lawsuit that led the Alabama supreme court to rule that frozen embryos are “extrauterine children”, endangering access to in vitro fertilization in the state, dismissed their lawsuit on Wednesday.

The two couples, James and Emily LePage and William and Caroline Fonde, sued the Mobile Infirmary medical center and the Center for Reproductive Medicine after a patient accidentally destroyed frozen embryos they had created through IVF. The patient had wandered into the center, removed the embryos from storage and dropped them on to the floor.

The couples filed their lawsuit under Alabama’s Wrongful Death of a Minor Act, prompting questions about whether frozen embryos legally constituted as minors.

Related: Alabama law protecting IVF met with both relief and concern: ‘There is more work to be done’

In February, the Alabama supreme court ruled that embryos were indeed children in the eyes of the law – a ruling that sent shockwaves across a country still reeling from the 2022 overturning of Roe v Wade. The decision forced IVF providers in Alabama to temporarily halt their work and led Alabama’s Republican-dominated state legislature to scramble to draft legislation to protect providers.

Alabama’s Republican governor, Kay Ivey, ultimately signed into law a bill that shielded providers from civil liability or criminal consequences in the event of “damage or death of an embryo” during IVF. However, Sean Tipton, a spokesperson for the American Society for Reproductive Medicine, said the legislation “clearly offers only a temporary solution”.

“It fails to correct the underlying mistake the court made when it conflated an in vitro fertilized egg with a child,” Tipton added.

In 2018, Alabama became the first state in the nation to pass a ballot measure that legally enshrined “fetal personhood” into its state constitution. Establishing fetal personhood and bestowing embryos and fetuses with full legal rights has long been a longtime goal of the anti-abortion movement . If fully enacted, fetal personhood would not only completely ban abortion but rewrite vast swathes of US law and limit access to IVF.

In June, the couples behind the lawsuit asked a judge to declare a new Alabama law protecting IVF providers unconstitutional. They cited the Alabama state constitution’s fetal personhood clause.

That same month, Senate Republicans scuttled a vote on Democratic legislation to protect access to IVF.

A Mobile county circuit court judge dismissed the LePages and Fondes’ lawsuit with prejudice, meaning that it cannot be refiled. Another couple involved in the lawsuit, Felicia Burdick-Aysenne and Scott Aysenne, have not dismissed their claims.

Mobile Infirmary declined to comment on the dismissals due to that ongoing litigation. A hospital spokesperson was not able to confirm whether a settlement had been reached with the LePages and Fondes.