Too late for an ETA, but I do want to add this clarification, after reading the part of the majority opinion dealing with the Wrongful Death of a Minor Act. Unless I missed it, Alabama did in fact pass the law in the mid-to-late 19th century (around the time wrongful death acts started appearing on scene elsewhere), but there doesn’t appear to be a corresponding (later) act extending it to fetuses or viable embryos. Rather, they do seem to have decided that at common law, within Alabama, “child” for purposes of the Act includes fetuses and the like in general.
Which is… concerning (but consistent with the state’s broader context of anti-abortion legislation, which they reference extensively). I guess the argument goes, you don’t need a separate statute saying “wrongful death and homicide laws extend to fetuses and embryos” if you are far enough along on the anti-abortion train.
ETA: And what I closed out with above, about whether IVF facilities can contract out of liability, seems like it is still open for consideration (at least tangentially). From the majority opinion:
C. Remaining Issues
During oral argument in these cases, the defendants suggested that the plaintiffs may be either contractually or equitably barred from pursuing wrongful-death claims. In particular, the defendants pointed out that all the plaintiffs signed contracts with the Center in which their embryonic children were, in many respects, treated as nonhuman property: the Fondes elected in their contract to automatically “destroy” any embryos that had remained frozen longer than five years; the LePages chose to donate similar embryos to medical researchers whose projects would “result in the destruction of the embryos”; and the Aysennes agreed to allow any “abnormal embryos” created through IVF to be experimented on for “research” purposes and then “discarded.” The defendants contended at oral argument that these provisions are fundamentally incompatible with the plaintiffs’ wrongful-death claims.
If the defendants are correct on that point, then they may be able to invoke waiver, estoppel, or similar affirmative defenses. But those defenses have not been briefed and were not considered by the trial court, so we will not attempt to resolve them here. … The trial court remains free to consider these and any other outstanding issues on remand.