In Mobile, state Supreme Court grapples with whether fertilized egg is a human life

MOBILE, Ala. (WALA) - In a rare session in the Port City, the Alabama Supreme Court on Tuesday tackled a pair of court cases raising the question of whether a fertilized egg is a human life before implantation in a uterus.

The court held oral arguments at the University of South Alabama. The justices, who typically meet in Montgomery, occasionally take their work on the road as part of an effort to educate the public about what they do. But the court has not been to the University of South Alabama in decades.

The case involves two lawsuits over the destruction of fertilized eggs created for in vitro fertilization

In the first, two couples who sued Mobile Infirmary Medical Center and an in vitro fertilization clinic called The Center for Reproductive Medicine. Each mother gave birth to two healthy children through the process and had other fertilized eggs at the facility. The second case involves another couple who were customers of the clinic

The couples sued under Alabama’s wrongful-death statute, alleging that a patient in December 2020 at the hospital got into an unlocked area where the embryos were stored and destroyed fertilized eggs belonging to James and Emily LePage; Williams and Caroline Fonde; and Felicia Burdick-Aysenne and Scott Ayesenne.

The couples accused the hospital of negligence in failing to protect the embryos. But Mobile County Circuit Judge Jill Phillips dismissed the lawsuits, holding that the wrongful-death statute did not apply to the embryos.

“If you’re in the business of creating embryonic life, you better be in the business of safeguarding it,” said David Wirtes Jr., an attorney for the LePages and the Fondes.

‘Not human beings’

But lawyers for the hospital and the Alabama Medical Association argued that the law does not cover embryos outside the womb.

“They are human embryos, but they are not human beings,” said Thomas Keene, an attorney for the association. “They do not have a beating heart.”

Keene noted that the process by design produces more fertilized eggs than needed to account for unsuccessful attempts to induce pregnancy. He said the parents signed contracts indicating that they understood the leftover embryos could be donated or discarded.

“This is not the treatment of a person,” he said. “That’s the real crux here.”

Although, these cases are not about abortion rights, they do touch on fundamental issues of when life begins. The U.S. Supreme Court last year overturned Roe v. Wade, which had guaranteed the right to abortion. Since Dobbs v. Jackson Women’s Health Organization, states now are free to broadly define the question without interference for the federal courts.

“Because this is a new issue – we’re really the first in the country to deal with this, it looks like –there was a lot of back and forth, more than normal,” Alabama Supreme Court Chief Justice Tom Parker told reporters after the hearing. “Because even the justices need to get a grip on this issue.”

The hearing drew a crowd and lawyers and judges from Mobile. The audience included U.S. Magistrate Judge William Cassady; state Rep. Matt Simpson (R-Daphne); Mobile County Circuit Judges Vicki Davis, Michael Windom and Jay York; and District Judges Spiro Cheriogotis, George Zoghby, Jennifer Wright and Zackery Moore. The hearing also was a unique opportunity for University of South Alabama to see up close how the appellate system works.

“I thought it was really, really interesting,” said Isabella Vierra, a pre-law senior. “I’m a big nerd for the judicial system; obviously. It’s my major. It’s my passion. So this was really, really cool. And I’ve never gotten to see an oral argument.”

Nicholas Flynn, a senior studying cybersecurity and digital forensics, attended the event as a USA Southerner/ Those are students who serve as ambassadors for the university. Even though he does not plan a career in the law, he said he found it eye-opening.

“You know, on TV, you see more dramatic lawyers, fighting in court, things like that,” he said. “This is a little more laid back and, I guess, like normal people, if you will.”

Flynn said he was impressed by how the lawyers handled such a controversial topic.

“Obviously, there were some potential hot button topics, but the two very specific cases that were being argued, the lawyers avoided the buzzwords and the political potential there and were really caring about their clients more than anything else.”

Tough questions of law and precedent

During the oral arguments, which stretched well beyond the one hour the court had allotted, several justices peppered both sides with tough questions over how various laws and court rulings might apply to this issue. Justice Greg Cook indicated he believe at the very least, it was premature of the trial judge to throw out the suit.

“I am deeply troubled by the dismissal at the pleading stage,” he said.

W. Christian Hines, an attorney for the defendants, pointed to statutes that seem to treat eggs outside the womb different from implanted embryos.

“I do not think we can overlook these distinctions,” he said.

At one point, one of the justices asked the defense directly whether it was their contention that the embryo was not a life.

“The embryo is a life,” said Austin Mulherin III. “But the question is whether the embryo is a person protected by the wrongful-death act.”

Jack Smalley III, who represents Scott Ayesenne and Burdick-Aysenne, argued the judge’s ruling created a “Catch-22.” He said the embryo, under the ruling, is the only live thing that would not be protected by the law. He pointed to his family’s cattle farm in Gadsden and noted they would have a claim if anyone killed the cattle, took down their corn or cut their timber.

“But under the trial court’s order, under the defendant’s argument, these IVF embryos, that are human lives, that are no different than any other embryos in the world other than their location, would have complete civil immunity,” he said. “There would be no claim under Alabama’s tort laws for the wrongful death and destruction of these embryos.”

The justices will vote on how to rule in the next day or two. But the public likely will not learn the decision for several months, when the court releases its opinion.

Updated at 5:30 p.m. to include Vicki Davis and Jennifer Wright to a list of dignitaries who attended the oral arguments.

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