Frozen Embryos Are Somehow 'Extrauterine Children' Living in 'Cryogenic Nurseries'

This horrifying Alabama news is a few days old now, but I can't stop thinking about the language used in the ruling.

Frozen Embryos Are Somehow 'Extrauterine Children' Living in 'Cryogenic Nurseries'
Photo by Susan Wilkinson / Unsplash

On Friday, the Alabama Supreme Court ruled that couples whose embryos were accidentally destroyed at a medical facility could sue under the state's "wrongful death" statute. The decision could not only imperil in vitro fertilization (IVF)—and a big hospital system has paused procedures as of today—but it's a big step toward fetal personhood, the longstanding goal of the anti-abortion movement. Personhood would give every zygote, embryo, and blastocyst legal rights that, by definition, strip rights away from women and pregnant people and subject them to pregnancy criminalization.

Yes, this horrifying news is a few days old now, but I can't stop thinking about the language used in the ruling. The majority held that frozen embryos qualify as people in the eyes of the wrongful death law; they just exist outside the uterus and are thereby "extrauterine children."

That disturbing phrase appears 14 times in the ruling (and another three times in the dissent):

screenshot from court ruling with two words highlighted: These are weighty concerns. But these cases do not require the Court to resolve them because, as explained below, neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude **extrauterine children** from the Act's coverage. Unborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.
Snippet from Alabama Supreme Court ruling in LePage v. The Center for Reproductive Medicine

The ruling also refers to the fertility center's embryo storage room as a "cryogenic nursery" seven times, even though there's no evidence the facility itself calls it that.

Screenshot where two words are highlighted: Facts and Procedural History The plaintiffs in these consolidated appeals are the parents of several embryonic children, each of whom was created through in vitro fertilization ("IVF") and -- until the incident giving rise to these cases -- had been kept alive in a **cryogenic nursery** while they awaited implantation. James LePage and Emily LePage are the parents of two embryos whom they call "Embryo A" and "Embryo B"; William Tripp
Snippet from Alabama Supreme Court ruling in LePage v. The Center for Reproductive Medicine

Frozen embryos are stored in liquid nitrogen tanks—here's an example, below. Does that looks like a nursery to you?

Yet somehow, the phrase "cryogenic nursery" has made it into a bunch of news stories about the case. You do not, under any circumstances, have to uncritically repeat personhood language from right-wing judges and lawmakers.

Meanwhile, as someone reminded me on Bluesky, this living, breathing baby—an extrauterine child, if you will—can't even get a birth certificate because he was born at home.

People who lose embryos due to neglect from medical centers are rightfully upset, but bringing cases under wrongful death statutes is indefensible because fertilized eggs are not people. By all means, sue them under different laws.

I think most of us know at least one person who needed IVF to build their family, and they may have varying views on abortion. But this ruling is only possible because the Supreme Court overturned Roe v. Wade and let states ban abortion. The Alabama decision cites Dobbs by name to say that "even as far back as the 18th century, the unborn were widely recognized as living persons with rights and interests." This debacle is yet another reminder that anti-abortion policies can harm anyone capable of pregnancy, and anyone who relies on fertility treatments.


  • Flagging again that the University of Alabama at Birmingham health system has paused IVF procedures in the wake of the court decision.
  • This ruling is already reverberating into other states. As I wrote for Jezebel, a Christian law firm asked the Florida Supreme Court on Monday to consider the Alabama case before it decides if an abortion ballot measure can go to voters this fall.
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