Why are we back to “illegal”? No it doesn’t.
I don’t really follow your “first technique” and “second technique” description. But, as always, we’re back to what is the “wrongful act” and is that something that a liability waiver would be enforceable for.
Because if they’re persons, how can they legally kill them?
Why do you keep saying they’re “persons”? What do you think this case was about and what do you think it held?
(Of course, this case doesn’t have anything to do with the legal definition of “person,” but “person” is an good example of a legal term that has different meanings in different contexts – sometimes it includes corporate persons, sometimes municipalities, sometimes states, sometimes state instrumentalities, sometimes the federal government, and for each, sometimes not. Is this like those silly arguments that go “if a corporation has due process rights, then why can’t it vote?!”).
Reading the opinion, I believe Falchion is correct (for now). The opinion makes express that it is not addressing the question of personhood, but rather the definition of “child” within the meaning of this one specific statute.
It sounds crazy, but you have to parse it like this: it is arguably possible to be a “child” within the meaning of the WDMA, and yet not a “legal person” in any respect.
However, that is of small comfort to me: just because they have declined to go that far today, doesn’t mean they won’t go that far tomorrow, especially since they are supporting their conclusion not by pointing to a statute that has expressly declared “child” means fertilized embryo (or whatever), but because they have concluded that this is the plain meaning of the term, and always has been. Which is quite a leap, IMHO, but surely one they would be capable of making again if the case arises where they are called to do so.
Okay. I hadn’t caught that. My fault.
Agreeing with this part, also.
Plus which, the clinics in question do appear to be at least temporarily shutting down; which is IMO a problem in itself. It’s true that this is a technology which didn’t exist at all a hundred years ago; but it’s also true that it’s a technology that’s become crucially important to a number of people.
Sure, and computer code includes “child” processes which have no special rights as human beings. But when one reads text from the concurring decision (quoted by @RitterSport , not his words, despite what discourse thinks):
It’s hard to think that such a narrow, technical reading is expected or desired by the courts. Granted, this is only a concurring decision, not the actual ruling. But if I had been running an IVF clinic in Alabama, I’d be shutting it down and shopping for a place to move to in another state.
If I started talking like that, my family would have me checked for a brain tumor, it’s so out of character.
That judge certainly wanted to go further, even if he couldn’t get everyone else to sign on. I’m sure religious folks are looking for other cases to push it further.
Fwiw, every time a court awards a liability award for a wrongful death, such as might happen after an auto accident, it’s kinda doing that. In many states, the workers comp laws give an explicit dollar value for an accidental death.
Of course. I just had lunch with a friend who recently went through that, and who find all this terrifying.
Well, sort of. This court did a lot more textual analysis than the precedents, which relied more on common law. However, I think the judge’s assertion that the present case is within black letter law was misleading.
My read:
The text of the wrongful death act uses the term “person”. The text of the wrongful death of a minor act uses the term “minor child”. When modern medicine began to appreciate prenatal care in the 1970s the court interpreted “minor child” in accordance with whether a doctor (or other tortfeasor) owes the child a duty of care under common law, distinct from the care owed towards the mother. In 1993 the court decided viability was a suitable bright line and held that previable unborn fetuses were not “minor children” within the meaning of the wrongful death statute. One factor of many in these decisions was that the (criminal) homicide statute did not extend to previable fetuses, and normally the civil and criminal death statutes mirror eachother.
These precedents were overruled in 2011 when a couple brought a wrongful death action after their driver injured them in a car accident, leading to a miscarriage. The fetus was not viable at the time of the accident. Mack v. Carmack, 79 So.3d 597 (AL 2011). The court changed course because its majority simply didn’t agree with the 1993 court, and because of a 2006 amendment to the homicide statute redefining “person” so as to include “unborn children in utero at any stage of development, regardless of viability”. Citing various other jurisdictions that rejected viability in their wrongful death statutes, opining that viability was an arbitrary and unreasonable line, and reasoning that the legislature surely did not intend prosecute for homicide while prohibiting the victim’s parents from bringing a wrongful death action, the court held that plaintiffs may bring a wrongful death action against their driver for killing their baby.
(Hamilton I, cited by the court as reaffirming Mack, is not worth reading. The only relevant point of law was whether Mack applied retroactively. It does. Besides, the facts of Hamilton I and II involved an unborn child in utero.)
What we have here in the LePage case is a new set of facts that mismatch the rationale behind binding precedents. There is a perfectly good argument to make that the wrongful death statute should not extend to unborn children in vitro. I think it’s inaccurate to say the case is easily resolved under black letter law - the court is breaking new ground here.
That being said, I wouldn’t say that the court overstepped its authority. They are on solid ground when it comes to dictionary definitions and the 2018 state constitutional amendment commanding the law to protect unborn life (with no carve-out for in-vitro). And I think they countered the clinic’s argument very well by drawing a distinction between the incongruity of: a) punishing a criminal for homicide of an unborn child while simultaneously not allowing a civil wrongful death action (no go per *Mack), and b) allowing a wrongful death action for an unborn child while not allowing prosecution for homicide (this the court can live with).
I don’t think that’s an appropriate read. Wrongful death claims must allege wrongful death: “caused by the wrongful act, omission, or negligence of any person, persons, or corporation…”
The facts of the case are, a patient at a fertility clinic walked into the back room, grabbed some jars, realized how cold they were, and dropped them, killing the fetuses. Now a random patient isn’t going to have deep pockets, maybe he settled separately or something. This case is the claim brought against the clinic, not simply because the fetuses died under their care, but because they died due to the clinic’s negligence in allowing an unauthorized patient to simply walk up and grab the jars.
Also this is not a criminal case. It doesn’t involve a crime (at least not by the parties to the case), nobody is being prosecuted or sent to jail. Neither is there an intent component to negligence.
The homicide statute, not at issue here or affected in any way by this case, specifically excludes in-vitro embryos. @thorny_locust
Why treat this different from any other wrongful death action for a patient undergoing risky treatment? The statute reads, “caused by the wrongful act, omission, or negligence of any person, persons…” so in practice the key word will be negligence, not wrongful. And the standard for negligence in this context should be the standard of care provided by fertility clinics generally, right?
~Max
Sensing the danger here, Republicans are falling all over themselves to declare their support for IVF. Trump posed on Truth Social that, “Like the OVERWHELMING MAJORITY of Americans, including the VAST MAJORITY of Republicans, Conservatives, Christians, and Pro-Life Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby.” The National Republican Senatorial Committee (the campaign arm for Senate Republicans) put out a memo with talking points strongly encouraging Senate candidates to make statements supporting IVF.
Of course, it’s easy for them to yell about how much they support IVF. But they’re studiously avoiding addressing the issue that’s causing the current contretemps: whether frozen embryos should be considered children.
My bold.
Did you mean to say “embryos,” or are you equating fetuses and embryos?
Does that include the gay couples and the ones that include a trans partner?
Blastocysts.
Yes, but we were considering the hypothetical willingness of a court to place a market value on a human life not as part of a wrongful death action, but as a trespass against chattel (or, perhaps, conversion) action. While Alabama courts had no qualms about doing that sort of thing, say, 200 years ago (back when people could also be chattel under Alabama law), well… good luck advancing that line of argument today. I know I don’t want to.
But on the subject of wrongful death, states vary quite a lot in what they will allow. Some states treat it as a suit by the estate for the loss of value to the estate (so, theoretically, even the estate of a single person with no heirs might recover something if the state allowed such a suit—or at the very least a remote heir could bring a suit, even if they might otherwise have expected no support from the deceased had they lived), others treat it as a suit by the survivors (next of kin) for the loss of value they would likely have received but for the person’s death (such as their spouse, who would likely have befitted from their lifetime earnings; their child, who might at least be able to count on an inheritance and maybe money for college, if they can prove it; or parents, who might have expected a child to care for them in old age).
It’s actually a fairly grim subject. One which i have some familiarity with because I chose to write a paper on two subjects, wrongful death actions and emotional distress damages (the availability of which also varies quite a lot by jurisdiction), as my final paper for a course in Economic Analysis of the Law. On that note, did you know that Fight Club misrepresented the whole “cost of a recall vs. cost of a lawsuit” thing? It was based on a real historical incident, but it was about cost of a safety upgrade vs. the estimated value of a human life times the probability of loss of life, effectively a reasonableness (negligence) calculation. The people who sued actually got a lot more than the value of the decedent’s life (at least according to such grim formula) because of how callous the formula appeared to be with respect to human life.
This is perfect slight of hand for Republicans. They can now start their pathetic public mewling about supporting IVF on one hand, while the other works ceaslessly behind their backs to reduce choice.
From the article cited in the OP:
Reproductive medicine scientists also blasted the ruling, saying it was a “medically and scientifically unfounded decision.”
How could they say that when Colonel Tom Parker (I assume he’s still a Colonel even after the Elvis fiasco) wrote a concurring opinion citing the scientific fact of the image-of-God thing. How can you argue against the image of God?
I was also amused when US Senator from Alabama and leading intellectual thinker Tommy “the Tuber” Tuberville was asked about this yesterday. His response was such a wandering meander of irrelevancies that it was clear that he didn’t understand either the question or the issue. Since then he’s apparently had a few things explained to him and now vows that Alabama will strongly encourage IVF, which puts the dumbshit legislators in an interesting quandary that apparently “the Tuber” doesn’t understand either.
“Alabama: where hope goes to die.”
Did you mean to say “embryos,”
My mistake,
~Max
I think I agree with you. I focused on wrongful acts because there didn’t seem to be much resistance to the idea of liability for negligent mishandling of embryos. But there was a whole parade of horribles around the deliberate destruction of them.
Most of that seemed to be based on a significant lack of understanding of the opinion (and lack of interest in understanding), but there is an curious element to the “wrongfulness” of the act. We would generally agree that if “a patient undergoing risky treatment” were deliberately killed, that would be per se outside the standard of care and likely should be actionable. But, the objection goes, that’s not necessarily true with respect to embryos. And now the word “wrongful” does a lot of work.
The issue is that the right wing has gone after reproductive rights by crafting ambiguous laws that sound okay, but are vague enough that a doctor who, for instance, performs an abortion to remove an ectopic pregnancy, risks being prosecuted. The GOAL is to say, “hey, it’s okay, the law allows these reasonable exceptions” but to actually scare providers away from doing them, so it’s not actually possible to get an abortion.
So when you come and say, “according to this very careful reading of the ruling, it only forbids this, even though a casual reading of the ruling forbids all this other stuff, too”, I can’t get very interested in the very careful reading. Because I don’t think it’s actually safe for a practitioner to rely on that.
And just who is “the personal representative of the minor”, if not the mother or father? Just anyone who says so? Do the parents need to be at all involved in someone being the “personal representative of the minor”? If not, then no agreement between the parent and the medical facility can shield the medical facility from this ruling.
As to the distinction between “child” and “person”, sure, those aren’t synonyms. But children are still a subset of persons.
The majority of Republicans clearly don’t support IVF very strongly, at least, given that they’re willing to elect the politicians who are currently banning it.