Professional Negligence Law Reporter

Decisions: Medicine

You must be a Professional Negligence Law Reporter subscriber to access this content.

If you are a member of AAJ's Professional Negligence Section or a subscriber, log in below. Not yet a Section member? Join today!

Join the Professional Negligence Section

Alabama’s Wrongful Death of a Minor Act applies to all children

March 26, 2024

The Alabama Supreme Court held that the state’s Wrongful Death of a Minor Act, Ala. Code §6-5-391, applies to all children—born and unborn, regardless of whether they are in utero.

Three couples underwent in vitro fertilization (IVF) treatments at a fertility clinic operated by the Center for Reproductive Medicine, P.C. Each couple had embryos that were placed in the center’s cryogenic nursery, which was in the same building as a local hospital. Several years later, a hospital patient entered the fertility clinic through an unsecured doorway and removed several embryos from the cryogenic nursery. The patient dropped the embryos on the floor, destroying them. The couples sued the Center for Reproductive Medicine and the hospital’s operator, alleging violation of the Alabama Wrongful Death of a Minor Act, among other claims. The trial court granted the defendants’ joint motions to dismiss the plaintiffs’ wrongful death, negligence, and wantonness claims and held that the cryopreserved IVF embryos did not fit within the statute’s definition of a person or child.

Affirming in part, the court noted that the question at issue is whether there exists an unwritten statutory exception for unborn children who are not in utero at the time of death. The text of the wrongful death act, the court says, allows parents of a deceased child to seek punitive damages when the death of the child resulted from the wrongful act, omission, or negligence of any person. Citing case law, the court added that an unborn child qualifies as a minor child under the act, regardless of that child’s viability or stage of development. Additionally, the court said, there is no latent ambiguity in the word “child,” which is not a term of art and contains no inherent uncertainty.

The court also found that the Alabama constitution acknowledges that the state’s public policy ensures the protection of the rights of unborn children, and this canon of construction directs courts to construe ambiguous statutes in a way that protects the rights of unborn children equally with the rights of born children. Thus, the court said, courts must include, rather than exclude, unborn children. Nothing about the act narrows the definition of unborn children to those who are physically in utero but instead provides a cause of action for the death of any minor child, without exception or limitation, the court found.

The court rejected the defense argument that absent an exception to wrongful death liability for extrauterine children, unwanted public policy outcomes will take place, including increasing the cost of IVF in Alabama and making cryopreservation onerous. Such policy concerns belong to the legislature, not the courts, the court said, finding that judges are required to interpret statutes without “indulging a speculation.”

Consequently, the court held that the Wrongful Death of a Minor Act is sweeping and unqualified and applies to all born and unborn children without limitation. The court therefore reversed the trial court’s dismissal of the plaintiffs’ wrongful death claims.

Citation: LePage v. Ctr. for Reproductive Medicine, P.C., 2024 WL 656591 (Ala. Feb. 16, 2024).

Plaintiff counsel: AAJ member Brian Duncan Jr., Atlanta; and AAJ members William Bonner, Trip Smalley, David Wirtes, Steven Nicholas, and Joseph Steadman, all of Mobile, Ala.