Sweet Home Alabama? Not So Much

By Attorney Gregg Herman
March 18, 2024

Alabama IVF

Let me start with the good news (which seems to be in short supply right now): The Alabama Supreme Court decision on IVF does not apply in Wisconsin.

Given Gov. Evers’ veto power and the makeup of the Wisconsin Supreme Court, it’s not likely to be the law here anytime soon. For that matter, the decision does not even apply to Alabama anymore, as it was quickly reversed by legislation.

Still, the decision raises some interesting issues worth considering.

On Feb. 16, 2024, the Alabama Supreme Court ruled that embryos created through in vitro fertilization should be considered children.

The plaintiffs were three couples who underwent IVF treatment at a fertility clinic in Alabama. They became pregnant and gave birth to healthy babies. However, as is typical for IVF, several embryos were left over. These additional embryos were frozen and preserved by the fertility clinic.

In December 2020, a patient entered the fertility clinic’s cryo-preservation unit and opened one of the tanks in which frozen embryos were stored in subfreezing temperatures. For unknown reasons, the patient put his hand in and grabbed some of the embryos, dropping and destroying the them.

The Supreme Court of Alabama held that the Wrongful Death of a Minor Act applies “to unborn children who are not located in utero at the time they are killed.” Essentially, the court held that life begins at conception.

While this was a civil lawsuit, the concept would have vast implications for family law and criminal cases as well. Just as one example, in a divorce case, if frozen embryos are children, the court would have to make custody/placement orders, as it is required to do so for all children. Worse, use of certain types of birth control that prevent implantation of a fertilized egg may be manslaughter. As may be the accidental dropping of embryos.

More disturbing than the chaos that would be caused by “life begins at fertilization” is the language employed by the court, to wit:

“We believe that each human, being from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah, and applied it to every unborn person in the state.”


“Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God, who made them in His image.”

This language is even more scary than the holding itself (which is plenty scary). If you’re keeping score at home, the court used the word “God” a total of 41 times in its decision. Whatever happened to separation of church and state? Maybe they thought they were an ecclesiastical court as opposed to one who is supposed to dispense justice equally to all – including those who believe in a different god or, horrors, no god at all.

The end result of this episode is likely more political than legal. It’s difficult to see any other state adopting this holding, and it didn’t even last very long in Alabama. Politics is another matter, as it gives Democrats a talking point, in an election year where we already have a lot of shouting.

For us non-politicians? Well, despite the issues with our legislature and Supreme Court, it sure makes me happy that I live in Wisconsin!

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.