Couple drops lawsuit that led to Alabama frozen embryo ruling

MONTGOMERY, Ala. -- A judge last week dismissed a wrongful death lawsuit that led the Alabama Supreme Court to rule that frozen embryos are “extrauterine children,” a decision that drew national attention and temporarily halted in vitro fertilization services in the state.

A couple, who filed a wrongful death lawsuit over the accidental destruction of their last frozen embryo, asked to drop the suit. A judge granted the request and dismissed the case Friday, according to state court records. Two other couples had dropped similar lawsuits in August.

The court order did not detail the reason for dropping the lawsuit or if a settlement had been reached. Trip Smalley, a lawyer representing the couple, did not immediately return an email and telephone message seeking comment.

The three couples had their embryos destroyed in 2020 when a hospital patient wandered into the storage area. The patient opened the container, picked up embryos and dropped them to the floor.

The Alabama Supreme Court in February ruled that the three couples could pursue wrongful death claims for the destruction of the embryos. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child, “applies to all unborn children, regardless of their location.”

The decision became a flashpoint in the national debate over abortion and raised liability concerns for fertility clinics as they create, store and work with frozen embryos. Three large IVF providers in Alabama paused services in the wake of the ruling. Facing a public backlash to the decision, Alabama lawmakers approved immunity legislation to shield doctors from lawsuits and get IVF services restarted in the state.

The couple, who had turned to IVF to have children, said in their 2021 lawsuit that the accident destroyed their final frozen embryo, which was being stored at the facility. Even though they had chosen not to implant it, “they considered this embryo a human being or life,” their lawyer wrote in the lawsuit.