In Vitro Fertilization, State Wrongful Death Statutes, and State Fetal Homicide Statutes: The Reaction to LePage v. Center for Reproductive Medicine

May 11, 2024
Edition: Spring 2024
Volume: 39
Issue: 1
Article: 4

Table of Contents


The Alabama Supreme Court recently held, in LePage v. Center for Reproductive Medicine, that the parents of human embryos that were negligently destroyed at a fertility clinic could bring an action for damages under the State’s wrongful death statute. Although the Alabama legislature promptly enacted a law essentially overturning the state supreme court’s decision, concerns have been raised that the court’s decision might influence courts in other States to interpret their wrongful death statutes, or possibly even their fetal homicide statutes, to apply in similar circumstances, thereby threatening the availability of in vitro fertilization (IVF) technology. This article addresses those concerns.

With respect to wrongful death statutes, only fourteen States (excluding Alabama) have interpreted their statutes to apply to unborn children without regard to their stage of gestation or development. The majority of States impose a gestational requirement (typically, viability) which would preclude their application to the destruction of human embryos. Even with respect to the minority of States that impose no limitation on the cause of action, those statutes, either by their express language or by fair interpretation, would not apply to unimplanted human embryos.

With respect to the fetal homicide statutes in thirty-one States that do not have any gestational or developmental limitation, the statutes in twenty-six of those States apply only to acts causing the death of an unborn child in utero. As to the statutes in the other five States, the structure of the statute, considered in light of the applicable case law, strongly suggests that there would be no liability for causing the death of an unborn child before implantation. In sum, the Alabama Supreme Court’s decision in LePage is not likely to be followed as a precedent in interpreting either the wrongful death statutes or the fetal homicide statutes of any other State.

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About the Authors

Affiliation: The author is an attorney in private practice in Illinois who specializes in state and federal constitutional appellate litigation and legislative consulting. Mr. Linton, the former General Counsel for Americans United for Life, has submitted amicus curiae briefs in several Supreme Court abortion cases, including Planned Parenthood v. Casey (1992) and Dobbs v. Jackson Women’s Health Organization (2022). Mr. Linton has published more than two dozen law review articles on a variety of topics, as well as the only comprehensive analysis of abortion as a state constitutional right, Abortion Under State Constitutions (3d ed. 2020) (Carolina Academic Press). Mr. Linton received his law degree from Loyola University of Chicago.