Alabama Declares Frozen Embryos Are Children, Creating Nightmare Rule Against Perpetuities Hypo
The Alabama bar exam is about to get lit.
As everyone else settled into the Presidents Day weekend, the Alabama Supreme Court accepted a post-Dobbs invitation to go ham on that whole “separation of church and state” nonsense peddled by liberal cucks like George Washington.
With generous citation to Biblical verses — though curiously NOT the Bible verse that addresses the fact pattern at issue — the court ruled that frozen embryos are alive under Alabama law.
A life in being, eh? No way that has unintended consequences!
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The plaintiffs in the case were families who rely upon in vitro fertilization to have children and brought suits against their provider when an intruder broke into the facility and destroyed some of their frozen embryos. Hopefully the compensation they’ll now receive will make up for the fact that their case only succeeded in ripping the dream of having a child away from future families struggling with infertility. Whether they intended to cruelly rob families of future children or are just incredibly stupid — or maybe played around with the wrong monkey’s paw — is unclear.
Embryos don’t just automatically turn into kids. IVF families can go through multiple implants in an effort to get a child. And for this reason, clinics try to successfully fertilize a number of eggs in case of failure. That creates a bunch of embryos that won’t end up being implanted and that probably wouldn’t result in a child even if they were. Without the freedom to get rid of those cells after the fact, IVF is an untenable industry.
This case, by itself, doesn’t get that far. Families who consent to ending the process aren’t going to sue. But the court didn’t limit itself to giving the plaintiffs a cause of action, and instead went on a tear laying the groundwork to expand the state’s criminal laws to not only shut down IVF, but to greenlight the next prosecutor who wants to charge women with murder for having a miscarriage.
As textualist readings go, the majority opinion is — fittingly — infantile, claiming that the “ordinary meaning” of the word child would include zygotes even though no one actually talks that way. The case involves a 19th century law imposing civil liability for killing a minor. In that context, the people of 1872 assumed the law would cover a factory owner ordering a child to crawl into a printing press to fix it. But would they think it covered a cell fertilized through science then-indistinguishable from magic and kept in a deep freeze without having even been in a womb? The majority says… sure, why not?
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The parties have given us no reason to doubt that the same was true in 1872, when the Wrongful Death of a Minor Act first became law.
This, as it happens, is a lie. Which is addressed in detail by the dissenting opinion by Justice Greg Cook. Cook is actually a committed conservative judge, but he’s also actually committed to the rule of law and that chafed against the majority. But it did set up some hilarious footnotes. For instance, when the majority cites a dictionary to back up its claim that there’s “no reason to doubt” the meaning of the text in 1872…
As Justice Cook points out, this entry goes on to explain that the term “child” is “applied to infants from their birth; but the time when they cease ordinarily to be so called, is not defined by custom.” ___ So. 3d at ____ (Cook, J., dissenting).
Oops. Well, it couldn’t get any worse for the majority could it?
It is true, as Justice Cook emphasizes, that the common law spared defendants from criminal-homicide liability for killing an unborn child unless the prosecution could prove that the child had been “born alive” before dying from its injuries.
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And so on. There’s a whole jag about how “OK, sure, back then the law didn’t recognize life until ‘the quickening’ but maybe… I dunno, maybe they just thought that was an evidentiary standard?!?!” It’s frankly embarrassing to read as the majority clumsily stepping on rakes for 25 pages en route to declaring embryos living people under the law — with all the repercussions that might bring. At least the concurrences make an effort to deliver a consistent argument.
They accomplish this by going full theocracy, but it IS consistent. As the Chief Justice put it:
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama 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. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.
Weird how all these concurrences keep citing Bible verses, but manage to never hit upon Exodus 21:22…
If people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows.
This is right before the more famous “eye for an eye” provision, putting in sharp contrast that a fetus is a mere financial concern while a living person warrants the death penalty.
I guess the clerks just missed that one in their research.
There’s plenty to be said about the serious implications of this ruling, but let’s focus on one of its most stupid. Get ready for the bar exam hypo of your nightmares!
Alabama has a pretty standard rule against perpetuities articulated in Section 35-4A-2:
(a) A nonvested property interest is invalid unless:
(1) when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or
(2) the interest either vests or terminates within 100 years after its creation.
That’s right, folks. Alabama just created a class of infinite lives! And don’t hold out hope that precedent or basic common sense can prevent this result because the majority opinion’s zealous, bumbling effort to stave off the dissent declared the “unborn” as living beings per the state constitution:
Even if the word “child” were ambiguous, however, the Alabama Constitution would require courts to resolve the ambiguity in favor of protecting unborn life….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….
Maybe the measuring life for purposes of vesting isn’t necessarily a rights holder. If we’re measuring Disney contracts by Princess Lilibet, the young royal has no stake. But the measuring life is more likely to be someone with skin in the game either directly or through their descendants. There’s no good faith argument that someone couldn’t keep my their property interests tied up in perpetuity as long as some remaining frozen embryo exists. Set up a trust to pay whatever monthly fee keeps the freezer plugged in and go wild.
It’s like a sci-fi adaptation of Bleak House. But real and with more rednecks.
This is an absurd result — and certainly one that no one intended when Alabama passed its RAP — but they never intended some stuffed robes to rewrite history and science to score cheap political points either, but here we are.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
