The Alabama Supreme Court held in LePage v. The Center for Reproductive Medicine, P.C. that the parents of embryos created through in vitro fertilization could bring a statutory wrongful death claim when the clinic where their embryos were stored allowed the destruction of the parents’ embryos by an intruder. The decision prompted a firestorm of stories seemingly written to frighten Americans that fertility treatments were under threat. “The Fight over I.V.F. Is Only Beginning” (The New Yorker) and “The Beginning of a Bad TRIP—Alabama’s Embryonic Personhood Decision and Targeted Restrictions on IVF Provision” (a Harvard Law School health law blog) put their message in headlines. The New York Times warned that the ruling “could change common practices at fertility clinics in the state and possibly nationwide.” Even Reason argued that the decision was “effectively outlawing” the use of IVF, while an article in the JAMA warned that the “dire” implications of the opinion would “bring into question whether embryos should be frozen at all.” Alabama fertility clinics promptly “paused” IVF treatments, a devastating decision for those women who had spent weeks injecting themselves with hormones preparing to have embryos implanted. Virtually none of the stories mentioned the facts alleged by the plaintiffs in LePage about why they brought suit.

The scare stories and tactics worked. On March 6, just two-and-a-half weeks after the Alabama court’s opinion was released, the Alabama legislature passed and Gov. Kay Ivey signed sweeping legislation immunizing IVF clinics from liability, stating that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Congress is also contemplating legislation to “protect” IVF as are legislatures in other states. However, as the only member of the Alabama Senate to vote against the bill accurately noted, the statute is “not an IVF protection bill, it’s an IVF provider and supplier protection bill” that is “limiting the ability of the mothers that are involved in IVF to have recourse” when their embryos were destroyed by clinics. How did concern over ensuring access to IVF become blanket immunity from tort liability for fertility clinics?

Regulatory Bootleggers

Most commentators, with the notable exception of Yuval Levin & O. Carter Snead, got the decision in LePage wrong. They got it so wrong it’s hard not to conclude that they deliberately did so. Virtually all of the media ignored what the decision actually said and the events that prompted the suit. By design or accident, the rush to portray the decision as the result of “creeping Christian conservatism” and ignorant Alabama judges who posed a threat to the availability of IVF for infertile couples put commentators of all political stripes in the position of playing regulatory “Baptists” to IVF clinics regulatory “bootleggers” in a classic “bootleggers and Baptists” coalition. That coalition delivered a sweeping exemption from normal tort liability to Alabama IVF clinics, enhancing the odds that clinics in other states will get similar immunities. In fact, LePage is nothing like the ideologically freighted, radical pro-life decision that the media claimed. It is a straightforward case of statutory interpretation in which the nine judges on the Alabama Supreme Court reasoned through a difficult issue using standard methods of reading statutes.

Economist Bruce Yandle created the bootleggers and Baptists theory after serving at the Federal Trade Commission. Why, he wondered, did regulators so often not listen to economists who pointed out how to accomplish public interest goals at lower costs, instead adopting policies that were less effective and more expensive? He reasoned that regulations were often the result of high-minded public interest rhetoric (the regulatory Baptists, just as real Baptists sought Sunday-closing laws to restrict liquor sales for wholesome reasons) and campaign contributions and other political muscle (the regulatory bootleggers, just as real bootleggers happily support Sunday closing laws to restrict legal liquor sales).

In using the decision in LePage to obtain immunity from tort suits, reproductive medicine clinics played the role of the regulatory bootleggers. Asking for absolute immunity from suit for negligence in handling embryos—embryos whose parents are likely to feel strongly about them—isn’t something for which many legislators would likely be sympathetic. After all, medical professionals, clinics, and hospitals are liable in tort for medical malpractice. Fertility clinics thus had a problem in explaining why they should get special treatment compared to other medical facilities and professionals. And negligence does occur in these clinics. A 2020 survey article in Fertility & Sterility Reports found 133 cases filed between January 2009 and June 2019 that credibly alleged the negligent destruction of cryopreserved embryos. (This does not include any losses of embryos where lawsuits were not filed.) While these losses represent only a tiny fraction of the almost 400,000 embryo thaw procedures clinics reported to the CDC in the same time period, each lost embryo was significant to the parents.

Most cases identified by the survey came from two storage tank failures; others involved mishandling of embryos, or misplacing or losing embryos in the lab or in transit. The storage tank failures involved “poorly regulated” high-capacity containers, which one assessment described as “no better by some accounts than kitchen appliances or farm tools” and which were tanks “developed in the 1960s to store livestock semen for breeding” and used at over 500 fertility clinics nationwide. It is not difficult to imagine a substantial jury verdict in a tort suit over the failure of 50-year-old technology developed for livestock semen being used for storing human embryos. The industry’s concern over potential tort liability is not unreasonable. However, faced with a naked demand for immunity, legislators might conclude that taking steps to get better technology (alarm failures were involved in the major instances) would be a better strategy than granting legal immunity.

LePage did not involve a tank failure but something that seems far worse. We know little about the events that led to the loss of the two families’ embryos because the trial court dismissed the case before discovery took place (on remand, the plaintiffs will have the opportunity to do discovery). All that is known is that, as the majority opinion described it, “In December 2020, a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.” Not securing access to a critical facility and so allowing third parties to “wander” in and destroy embryos does not paint the clinic in a sympathetic light. A bank that failed to lock its safe deposit vault and allowed strangers to “wander in” and help themselves to depositors’ valuables would be liable. Why not a clinic that did the same thing? Why did the case spark such a firestorm?

What was at Issue in LePage

The families whose embryos were destroyed by the wandering patient brought a claim under Alabama’s Wrongful Death of a Minor Act, an 1872 statute that allows the parents of a deceased minor child to bring a claim for punitive damages. Under pre-LePage Alabama precedents, unborn children present in the uterus of their mother are within the statute’s definition of “minor child,” regardless of viability or stage of development. Here we focus just on the majority opinion (which got six of nine votes) and the dissent by Justice Cook (one vote). The question that the court had to resolve was straightforward: did an embryo outside the uterus also qualify for coverage under the statute? Justice Mitchell’s majority opinion held that it did.

All opinions provided thoughtful analyses of the legal question. Disagreements turned on standard issues of statutory interpretation. The majority and Justice Cook disagreed over whether the definition of a person in Alabama criminal law and the definition in the Wrongful Death of a Minor Act needed to be the same (Justice Cook) or whether, as the majority held, the civil statute could have a wider definition than the criminal statute. Reasonable people (and lawyers) can differ on whether the majority or Justice Cook is correct on this point but their disagreement is simply over the proper textualist method of interpreting a statute to answer a question that the statute’s drafters in 1872 never contemplated. Their disagreement, and answers, have nothing to do with the merits of IVF or whether it should be available in Alabama or elsewhere. All nine justices made a point of noting that policy issues belonged to the Alabama legislature.

The portrayal of the decision as “creeping Christian conservatism” rests largely on misreading the Chief Justice’s concurrence. He examined a provision of the Alabama state constitution added in 2018 that recognizes “the sanctity of unborn life and the rights of unborn children, including the right to life.” His opinion, which no other member of the court joined, discusses Alabama case law, dictionary meanings, legal literature, as well as the use of the term “sanctity of life” in religious texts. That is, of course, where there is a great deal of discussion of the term. The Chief Justice’s opinion can only be understood in the context of his concurrences in two prior wrongful death act cases involving the death of unborn children. In all three opinions, the Chief Justice developed a framework that attempts to situate Alabama’s efforts to protect unborn children in the larger context of debates over viability in federal abortion jurisprudence, and his opinions are not a harbinger of the imposition of Handmaid’s Tale dystopian oppression of women.

Bootleggers Triumphant

The media’s account of the majority opinion in LePage misrepresented it as an attack on IVF, a procedure that has enabled thousands of families (including my own) to grow through the miracle of the creation of life. As amazing as this technology is, it is still a medical procedure that involves the risk of negligence. Negligence can serve as the basis of a claim for damages. The question the media avoided, and that the panic they induced enabled the clinics to avoid, was “Why should IVF be treated differently?” As Levin and Snead noted, “The Alabama legislature could have responded to the state supreme court’s decision by using the alleged egregious negligence of the clinic in question as an occasion to establish some rules for the practice of fertility treatment, including the creation, use, and storage of living human embryos.” Instead, it granted blanket immunity to clinics. That is a failure of governance.

If the plaintiffs in LePage go to trial against the clinic involved, we will learn how it came to be that someone was able to wander into the embryo nursery, remove embryos from the cold storage unit, and destroy them. It is plausible that this was the result of negligence on the part of the clinic. At a minimum, there was deficient control of access to the nursery, including a lack of reasonably simple protective measures (door and freezer locks). Requiring simple controls on access to frozen embryos is not a crushing burden that will end the availability of IVF. Instead, immunizing IVF facilities from tort liability removes the powerful incentives provided by tort law, incentives that push most medical professionals in America to meet professional standards of care. The tragedy of LePage is that all but one of the institutions involved—the media, the Alabama legislature, and the Governor—fell for the special-interest regulatory Baptists’ rhetoric and failed to stand up to the regulatory bootleggers. Only the Alabama Supreme Court focused on the real issue. As a result of the other failures, there will be more tragedies but without the potential that future parents of negligently destroyed embryos will be compensated for their injuries.