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Decision - Distributed
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_________________________
SC-2022-0515
_________________________
v.
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SC-2022-0579
_________________________
v.
MITCHELL, Justice. 1
This Court has long held that unborn children are "children" for
punitive damages for their child's death. The central question presented
exception to that rule for extrauterine children -- that is, unborn children
who are located outside of a biological uterus at the time they are killed.
Under existing black-letter law, the answer to that question is no: the
of their location.
fertilization ("IVF") and -- until the incident giving rise to these cases --
implantation. James LePage and Emily LePage are the parents of two
embryos whom they call "Embryo A" and "Embryo B"; William Tripp
Fonde and Caroline Fonde are the parents of two other embryos called
"Embryo C" and "Embryo D"; and Felicia Burdick-Aysenne and Scott
Between 2013 and 2016, each set of parents went to a fertility clinic
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help the plaintiffs conceive children by joining the mother's eggs and the
father's sperm "in vitro" -- that is, outside the mother's body. The Center
artificially gestated each embryo to "a few days" of age and then placed
embryos kept in the Center's cryogenic nursery, which was located within
the same building as the local hospital, the Mobile Infirmary Medical
The plaintiffs allege that the Center was obligated to keep the
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patient's hand, causing the patient to drop the embryos on the floor,
killing them.
The plaintiffs brought two lawsuits against the Center and the
Association. The first suit was brought jointly by the LePages and the
Fondes; the second was brought by the Aysennes. Each set of plaintiffs
wantonness (in the Aysennes' case), for which they sought compensatory
pleaded "in the alternative, and only [apply] should the Courts of this
State or the United States Supreme Court ultimately rule that [an
The Center and the Association filed joint motions in each case
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12(b)(1) and 12(b)(6), Ala. R. Civ. P. The trial court granted those
motions. In each of its judgments, the trial court explained its view that
within the definition of a 'person' " or " 'child,' " and it therefore held that
The trial court also concluded that the plaintiffs' negligence and
that, to the extent those claims sought recovery for the value of embryonic
the extent the claims sought emotional-distress damages, the trial court
said that they were barred by the traditional limits to Alabama's "zone of
danger test," which "limits recovery for emotional injury only to plaintiffs
the Fondes' claims, and left the Aysennes with only their breach-of-
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contract and bailment claims. The Aysennes asked the trial court to
certify its judgment as final under Rule 54(b), Ala. R. Civ. P., which the
Standard of Review
Analysis
children as human beings. But the Court today need not address these
clear: the Wrongful Death of a Minor Act applies on its face to all unborn
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A. Wrongful-Death Claims
points of agreement. All parties to these cases, like all members of this
whose life begins at fertilization and ends at death. The parties further
an unwritten exception to that rule for unborn children who are not
physically located "in utero" -- that is, inside a biological uterus -- at the
time they are killed. The defendants argue that this Court should
biological womb.
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The plaintiffs, for their part, argue that the proposed exception for
would deprive parents of any civil remedy against someone who kills
their unborn child in a "partial-birth" posture -- that is, after the child
has left the uterus but before the child has been fully delivered from the
because such a child would both be (1) "unborn" (having never been
delivered from a biological womb) and (2) not "in utero."2 And if such
children were not legal "children" or "persons," then their lives would be
unequal treatment would offend the Equal Protection Clause of the 14th
features of their birth or ancestry. See Students for Fair Admissions, Inc.
v. President & Fellows of Harvard Coll., 600 U.S. 181, 208 (2023)
their very nature odious to a free people whose institutions are founded
3In his dissenting opinion, Justice Cook appears to concede that the
life of a fully developed child who was conceived and gestated in vitro
would not be protected under his and the defendants' reading of the
Wrongful Death of a Minor Act. See ___ So. 3d at ____ n.55 (arguing that
"the Legislature" would have to intervene to protect the lives of any
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These are weighty concerns. But these cases do not require the
Court to resolve them because, as explained below, neither the text of the
First enacted in 1872, the Wrongful Death of a Minor Act allows the
six months of the child's passing. § 6-5-391(a). The Act does not define
either "child" or "minor child," but this Court held in Mack v. Carmack,
79 So. 3d 597 (Ala. 2011), that an unborn child qualifies as a "minor child"
children created with these "future technologies"). Justice Cook does not,
however, discuss the constitutional implications of that position.
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Hamilton,4 and for good reason: the ordinary meaning of "child" includes
children who have not yet been born. "This Court's most cited dictionary
defines 'child' as 'an unborn or recently born person,' " Ex parte Ankrom,
152 So. 3d 397, 431 (Ala. 2013) (Shaw, J., concurring in part and
214 (11th ed. 2003)), and all other mainstream dictionaries are in accord.
See, e.g., 3 The Oxford English Dictionary 113 (2d ed. 1989) (defining
"patent or latent ambiguity in the word 'child'; it is not a term of art and
The parties have given us no reason to doubt that the same was
true in 1872, when the Wrongful Death of a Minor Act first became law.
See Act No. 62, Ala. Acts 1871-72 (codified at § 2899, Ala. Code 1876).
Indeed, the leading dictionary of that time defined the word "child" as
5As Justice Cook points out, this entry goes on to explain that the
term "child" is "applied to infants from their birth; but the time when
they cease ordinarily to be so called, is not defined by custom." ___ So.
3d at ____ (Cook, J., dissenting). Justice Cook believes that this language
indicates that infants prior to birth were not considered "children." We
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6It is true, as Justice Cook emphasizes, that the common law spared
defendants from criminal-homicide liability for killing an unborn child
unless the prosecution could prove that the child had been "born alive"
before dying from its injuries. But the criminal law has always been "out
of step with the treatment of prenatal life in other areas of law," in that
it generally prioritizes lenity towards the accused over the otherwise
applicable " 'civil rights' " of unborn children. Dobbs v. Jackson Women's
Health Org., 597 U.S. 215, 247 (2022) (citation omitted). Accordingly, the
born-alive safe harbor appears to have operated primarily as an
evidentiary rule rather than as a substantive limitation on personhood.
Joanne Pedone, Filling the Void: Model Legislation for Fetal Homicide
Crimes, 43 Colum. J. L. & Soc. Probs. 77, 82 (2009) (explaining that the
function of the born-alive rule was "to make sure the government
established causation before obtaining a homicide conviction," during an
era in which " 'the state of medical science' " was primitive and in which
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States Supreme Court's recent observation that, even as far back as the
18th century, the unborn were widely recognized as living persons with
rights and interests. See Dobbs v. Jackson Women's Health Org., 597
" ' "natural, ordinary, commonly understood meaning," ' " unless there is
Swindle v. Remington, 291 So. 3d 439, 457 (Ala. 2019) (citations omitted).
Here, the parties have not pointed us to any such indication, which
conversation.
state to ensure the protection of the rights of the unborn child in all
unborn child" equally with the rights of born children, whenever such
Wrongful Death of a Minor Act, that means coming down on the side of
7Justice Cook argues that § 36.06 should not inform our analysis
because, he contends, that provision "cannot retroactively change the
meaning of words passed in 1872." ___ So. 3d at ___ (Cook, J., dissenting).
But as part of our Constitution, § 36.06 represents "the supreme law of
the state," meaning that all statutes "must yield" to it, whether or not
they were enacted prior to its adoption. Alexander v. State ex rel. Carver,
274 Ala. 441, 446, 150 So. 2d 204, 208 (1963). Further, the definition of
"child" that we apply here is in keeping with the definition that was
established by this Court's precedents at the time § 36.06 was adopted.
See Mack, 79 So. 3d at 611 ("[W]e hold that the Wrongful Death Act
permits an action for the death of a previable fetus."); Hamilton, 97 So.
3d at 735 ("As set forth in Mack and as applicable in this case, Alabama's
wrongful-death statute allows an action to be brought for the wrongful
death of any unborn child."). It is Justice Cook's opinion, not this Court's,
that seeks to set aside that meaning in favor of the view that the term
"child," as originally understood, did not encompass "an unborn infant."
See ___ So. 3d at ___ (Cook, J., dissenting).
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including, rather than excluding, children who have not yet been born.
The upshot here is that the phrase "minor child" means the same
Language 198 (defining "child"). Nothing about the Act narrows that
definition to unborn children who are physically "in utero." Instead, the
Act provides a cause of action for the death of any "minor child," without
context because, they say, our own precedents compel that outcome.
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under our civil wrongful-death laws; (2) extrauterine children are not
opinions in Mack and Stinnett v. Kennedy, 232 So. 3d 202 (Ala. 2016).
8The plaintiffs argue that both premises are faulty, but since we
agree that the first is wrong, we have no need to reach the second.
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by the Brody Act, Act No. 2006-419, Ala. Acts 2006 -- expressly included
(and continues to include) unborn children as " 'person[s],' " " 'regardless
The Mack Court noted that it would be " 'incongruous' if 'a defendant
could be responsible criminally for the homicide of a fetal child but would
criminal-homicide laws. But the main opinions in Mack and Stinnett did
not say that. Those opinions simply observed that it would be perverse
unborn child while immunizing the defendant from civil liability for the
because criminal liability is, by its nature, more severe than civil liability
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always narrower than the conduct that can support a civil suit. 9
criminal ones (as Mack and Stinnett reasoned), the defendants insist that
the civil law can never sweep more broadly than the criminal law. That
232 So. 3d at 215. As this passage from Stinnett makes clear, the
question we have no occasion to reach), it would not follow that they must
say, will arise if this Court does not create an exception to wrongful-death
State of Alabama amicus brief at 42; see also Appellees' brief in appeal
prohibitive").
focused arguments belong before the Legislature, not this Court. Judges
are required to conform our rulings "to the expressions of the legislature,
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synopsis (1800) (Chase, J., writing for the federal circuit court).
Here, the text of the Wrongful Death of a Minor Act is sweeping and
limitation. It is not the role of this Court to craft a new limitation based
on our own view of what is or is not wise public policy. That is especially
excluding "unborn life" from legal protection. Art. I, § 36.06, Ala. Const.
2022. 10
Act. Since we now hold that the Act does protect extrauterine children,
and we affirm the trial court's dismissal of those claims on that basis.
C. Remaining Issues
out that all the plaintiffs signed contracts with the Center in which their
causing the death of the unborn child, no matter how desperately the
surgeon and the parents wish to preserve the child's life. In light of that
tragic reality, we do not see how any hypothetical plaintiffs who attempt
to sue over the consensual removal of an ectopic pregnancy could
establish the core elements of a wrongful-death claim, including breach
of duty and causation.
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any embryos that had remained frozen longer than five years; the
If the defendants are correct on that point, then they may be able
defenses have not been briefed and were not considered by the trial court,
so we will not attempt to resolve them here. We are "a court of review,
not a court of first instance." Henry v. White, 222 Ala. 228, 228, 131 So.
899, 899 (1931). The trial court remains free to consider these and any
Conclusion
death claims in both appeal no. SC-2022-0515 and appeal no. SC-2022-
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claims are now moot, we affirm the trial court's dismissal of those claims
on that basis.
AND REMANDED.
AND REMANDED.
Shaw, J., concurs specially, with opinion, which Stewart, J., joins.
Sellers, J., concurs in the result in part and dissents in part, with
opinion.
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these cases, that means upholding the sanctity of unborn life, including
unborn life that exists outside the womb. Our state Constitution contains
declares, and affirms that it is the public policy of this state to recognize
and support the sanctity of unborn life and the rights of unborn children,
including the right to life." Art. I, § 36.06(a), Ala. Const. 2022 (adopted
life -- a fact that no party in these cases disputes. Therefore, I take this
as used in § 36.06 and to explore the legal effect of the adoption of the
public policy.
I. Meaning of "Sanctity"
"sanctity of unborn life." But because the parties have raised § 36.06 in
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their arguments, these cases call for us to interpret what this phrase
provision to have at the time they enacted it.' " Barnett v. Jones, 338 So.
3d 757, 767 (Ala. 2021) (Mitchell, J., joined by Parker, C.J., concurring
must start with the text, but it also must include the context of the time
Limestone Cnty., 160 Ala. 544, 554, 49 So. 417, 420 (1909) (holding that
dictionaries, but the analysis must also "draw from deeper wells" instead
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Mackey, [Ms. 1210353, Dec. 22, 2022] ___ So. 3d ____, ____ (Ala. 2022)
"deeper wells" include (1) the history of the period, (2) similar provisions
convention, inasmuch as they shed light on what the public thought, (4)
the common law, (5) cases, (6) legal treatises, (7) evidence of
(9) any other evidence of original public meaning, which could include
concurring in part and concurring in the result in part); Young Ams. for
18, 2022] ___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part
and concurring in the result); Barnett, 338 So. 3d at 766-67 (Mitchell, J.,
concurring specially).
terms and concepts as the broader and more common phrase, "sanctity of
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life." Thus, the history and meaning of the phrase "sanctity of life"
used in § 36.06.
At the time § 36.06 was adopted, "sanctity" was defined as: "1.
The Law and Ethics of Medicine 3 (2012); Neil M. Gorsuch, The Future
moral theory" that human life is a "basic good" that "ultimately comes
largely overlap, the two words cannot simply be substituted for each
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other because each word carries its own set of implications. When the
People of Alabama adopted § 36.06, they did not use the term
"inviolability," with its secular connotations, but rather they chose the
its preamble "invok[es] the favor and guidance of Almighty God," pmbl.,
Ala. Const. 2022, and which declares that "all men … are endowed [with
later described human life as being "the immediate donation of the great
Only recently has the phrase "sanctity of life" been widely used as
shorthand for the general principle that human life can never be
and the Criminal Law, in 1957. The common usage of this phrase has
continued into the 21st century, referring to the view that all human
beings bear God's image from the moment of conception. See, e.g.,
(at the time of this decision, this document could be located at:
So. 3d 597 (Ala. 2011). Ex parte Hicks, 153 So. 3d 53, 72 (Ala. 2014)
justification -- has deep roots that reach back to the creation of man "in
image as follows:
"….
(1698-99). 14
the image of God accords with that of Thomas Aquinas centuries earlier.
things God made, including nonhuman life, on the ground that man was
Benziger Bros., Inc. 1947). Further, Aquinas explained that every man
understanding and loving God," which imitates God chiefly in "that God
understands and loves Himself." Id., First Part, Question 93, Art. 4.
Thus, man's creation in God's image directs man to his last end, which is
on the intentional taking of human life. See Genesis 9:6 (King James)
("Whoso sheddeth man's blood, by man shall his blood be shed: for in the
explains:
(emphasis added). Likewise, the Geneva Bible, which was the "most
not only done to man, but also to God." Genesis 9:6 n.2 (Geneva Bible
1599).
Commandment: "You shall not murder." Exodus 20:13 (NKJV 1982). See
Commandment is the basis for "Respect for Life" in Western law); see
also Van Orden v. Perry, 545 U.S. 677, 686-90 (2005) (discussing the
taught that "it is in no way lawful to slay the innocent" because "we ought
to love the nature which God has made, and which is destroyed by slaying
the reason for the Sixth Commandment this way: "Man is both the image
of God and our flesh. Wherefore, if we would not violate the image of God,
we must hold the person of man sacred." 2 John Calvin, Institutes of the
2008) (1559). These and many similar writings, creeds, catechisms, and
made every person in His image; (2) each person therefore has a value
that far exceeds the ability of human beings to calculate; and (3) human
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Section 36.06 recognizes that this is true of unborn human life no less
than it is of all other human life -- that even before birth, all human
beings bear the image of God, and their lives cannot be destroyed without
life," I will briefly explore the legal effect of its inclusion in the Alabama
In 2018, the term "public policy" was a legal term that meant: "The
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fundamental concern to the state and the whole society." Black's Law
Dictionary 1426 (10th ed. 2014); see also Antonin Scalia & Bryan A.
instead of common meaning when the law is the subject). Notice that the
dictionary does not just say that "public policy" is something like
Legislature and not this Court to decide. Instead, it refers to the collective
Because this term refers to fixed standards and not subjective opinions
of whatever serves the public good, this Court can look to this § 36.06 in
but not "some considerations of policy which might properly have weight
with the Legislature if it had occasion to deal with the question." Couch
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v. Hutchison, 2 Ala. App. 444, 447, 57 So. 75, 76 (1911). Thus, Alabama
policy of this state is. It must not, however, usurp the role of the
might have made if it had considered other factors. That decision must
considering that question, this Court held: "It is not denied that where
the plain language of the statute, and I agree with this approach. See
substantial doubt about the meaning of the statute and (2) the precepts
40
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Z.W.E., 335 So. 3d 650, 660 (Ala. 2021) (Parker, C.J., concurring in the
result) (citing Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258, 1260-62
(Ala. 1994); Allgood v. State, 20 Ala. App. 665, 667, 104 So. 847, 848
(2012)). Thus, I agree with the main opinion that, if the Wrongful Death
of a Minor Act, § 6-5-391, Ala. Code 1975, were ambiguous, then the
the plaintiffs.
gleaning bits and pieces of the state's public policy from the Constitution,
told the Legislature, the Executive, and the Judiciary what they are
usurp the role of the Legislature. But in this case, the People explicitly
told all three branches of government what they ought to do. See The
Federalist No. 78, at 525 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)
41
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(noting that "the power of the people is superior to both" the judicial and
Federalist No. 78, "where the will of the legislature declared in its
Putting this all together, § 36.06 does much more than simply
declare a moral value that the People of Alabama like. Instead, this
unborn life. Although § 36.06 may not resolve every case involving
42
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Justice Cook argues in his dissent that applying § 36.06 and the
note briefly that many other Westernized countries have adopted IVF
killing when they become inconvenient. For decades, IVF has been
comparing it to the Wild West. See, e.g., Alexander N. Hecht, The Wild
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Technology Innovation, 45 Am. J. L. & Med. 130, 144 & n.77 (2019)
(noting that IVF in the United States is still unregulated and that
parentage of children conceived through IVF, but they do not govern the
practice of IVF itself. See The Alabama Uniform Parentage Act, § 26-17-
101 et seq., Ala. Code 1975. And the only administrative regulation of
IVF in Alabama governs IVF clinics' use of radioactive materials, but not
any other IVF practice. Ala. Admin. Code (State Bd. Of Health, Dep't of
regulate the IVF industry, then the good news is it need not reinvent the
to consider.
implanting the embryos into the uterus,17 in Australia and New Zealand
https://www.fertilitysociety.com.au/wp-content/uploads/20211124-
RTAC-ANZ-COP.pdf.).
transfers involve just one embryo, and 38% involve two; thus, 96% of
reduce or eliminate the need for storing embryos for extended lengths of
except when a bona fide health risk or force majeure prevented the
these measures protect the lives of the unborn and still allow couples to
have allowed only one transfer at a time; the United Kingdom, France,
and Sweden have allowed no more than two; and Germany has allowed
only three, although a maximum of two is recommended. Id.; Embryo
Protection Act, Chapter 524, § 6, of the Laws of Malta; Susan Mayor, UK
Authority Sets Limits on Number of Embryos Transferred, 328 BMJ 65,
65 (2004). Some of these laws may have changed over time, but they
illustrate that other Westernized countries have, at some point, adopted
these positions.
21See Legge 19 Feb. 2004, no. 40 (art. 14, para. 3), in G.U. Feb. 24,
2004, no. 45 (It.).
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result from this decision, to the extent that Justice Cook is predicting
that IVF will now end in Alabama, that prediction does not seem to be
well-founded.
likely to comport with upholding the sanctity of life than the prevailing
little chance of survival and then throwing embryos away after a while.
other Westernized countries that have regulations that achieve both the
it is for the Legislature to decide how the IVF industry can help parents
III. Conclusion
their amicus are not sustainable in light of the Sanctity of Unborn Life
this State to be that unborn human life is sacred. We believe that each
Alabama took what was spoken of the prophet Jeremiah and applied it
to every unborn person in this state: "Before I formed you in the womb I
knew you, Before you were born I sanctified you." Jeremiah 1:5 (NKJV
mandate to treat each unborn human life with reverence. Carving out an
exception for the people in this case, small as they were, would be
every human being in accordance with the fear of a holy God who made
them in His image. For these reasons, and for the reasons stated in the
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following.
I agree with the main opinion that the meaning of the word "child"
for purposes of Alabama law is well settled and includes an unborn child.
Thus, for purposes of the Wrongful Death of a Minor Act, § 6-5-391, Ala.
Code 1975 ("the Wrongful Death Act"), the term "minor child" includes
child" for purposes of the Wrongful Death Act, this Court has referenced
in turn applies to certain portions of the criminal code. The main opinion
thoroughly explains why this criminal-law definition does not limit the
a different result.
§ 1-3-1, Ala. Code 1975 (emphasis added). The language of this Code
section is plain: the common law does not apply when it is inconsistent
with the Constitution, laws, and institutions of this state. The legislature
may always alter the common law, but this Code section does not provide
that the common law, if inconsistent with the above, remains in place
Swartz v. United States Steel Corp., 293 Ala. 439, 446-47, 304 So. 2d 881,
In the context of civil law, the legislature, the constitution, and this
Ala. Const. 2022, Art. I, § 36.06(b) ("[I]t is the public policy of this state
to ensure the protection of the rights of the unborn child …."); and
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injuries done to the unborn, Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596
(1972), and Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012). If, after this,
the common law does not allow wrongful-death actions for some unborn
children when they are injured -- here, based on their physical location --
that rule must be consistent with the Constitution, laws, and institutions
Creating and sustaining life outside a woman's womb is nothing less than
the stuff of miracles. The overriding public policy of this state recognizes
and supports the sanctity of unborn life and the rights of unborn children,
including the right to life, and requires the protection of the rights of the
unborn child "in all manners and measures lawful and appropriate." §
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52
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Over the course of time, previous cases from this Court have applied
Ala. Code 1975, the Wrongful Death of a Minor Act, to human lives at
Francisco Railway Co., 214 Ala. 611, 108 So. 566 (1926), this Court,
before the birth is no basis for action in damages by the child or its
Ala. 464, 467, 118 So. 741, 743 (1928) (citing Stanford). However, in
Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972), "[t]he Court
[Title 7, § 119, Ala. Code 1940 (Recomp. 1958),] included an unborn child
who was viable at the time of a prenatal injury, who thereafter was born
alive, but who later died. 289 Ala. at 55, 265 So. 2d at 596." Mack v.
Carmack, 79 So. 3d 597, 601 (Ala. 2011). The Court pushed the boundary
back again in Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758 (1973), in which
the Court "concluded that [a] father could maintain an action for the
wrongful death of his unborn child even though the injuries that allegedly
caused the death occurred before the fetus became viable." Mack, 79 So.
3d at 604. A year later, in Eich v. Town of Gulf Shores, 293 Ala. 95, 100,
300 So. 2d 354, 358 (1974), the Court held that "the parents of an eight
action for the wrongful death of the child." The Court stepped back from
1241 (Ala. 1993), and Lollar v. Tankersley, 613 So. 2d 1249 (Ala. 1993),
concluding that "the Wrongful Death [of a Minor] Act did not permit
recovery for the death of a fetus that occurs before the fetus attains
viability." Mack, 79 So. 3d at 606. But, several years later in Mack, the
Act espoused in Wolfe, holding that "the Wrongful Death [of a Minor] Act
611. In Hamilton v. Scott, 97 So. 3d 728, 735 (Ala. 2012), the Court
death statute allows an action to be brought for the wrongful death of any
unborn child, even when the child dies before reaching viability."
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Death of a Minor Act, and the fact that the pertinent language in the Act
has not been amended since its enactment in 1872, shows that this Court,
rather than the Legislature, has taken the lead in shaping when the
protection afforded by the Act may be invoked. See Eich, 293 Ala. at 100,
300 So. 2d at 358 (describing that decision as one in which the Court was
Wolfe …."). Because of that, and because the terms "child" and "minor
Minor Act, I agree with the main opinion that the Act can be construed
For those reasons, I concur in the result reached today that reverses the
comments contained in the main opinion. The main opinion begins its
analysis by observing that "[t]he parties to these cases have raised many
55
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So. 3d at __. Indeed, the main opinion states that the text of § 6-5-391(a)
Carranza v. United States, 267 P.3d 912, 916 (Utah 2011) (opinion of Lee,
Wrongful Death of a Minor Act was first enacted in 1872, and for 100
parlance" has long included an "unborn child," the main opinion fails to
acknowledge that, at the time the Wrongful Death of a Minor Act was
56
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enacted -- and long thereafter -- the term "unborn child" was only
24See, e.g., Wolfe, 291 Ala. at 331, 280 So. 2d at 761 (observing that
"the fetus or embryo is not a part of the mother, but rather has a separate
existence within the body of the mother" (emphasis added)); Clarke v.
State, 117 Ala. 1, 8, 23 So. 671, 674 (1898) (" 'When a child, having been
born alive, afterwards died by reason of any potion or bruises it received
in the womb, it seems always to have been the better opinion that it was
murder in such as administered or gave them.' " (quoting 3 Russell on
Crimes 6 (6th ed.))). Cf. Ex parte Ankrom, 152 So. 3d 397, 416 (Ala. 2013)
(observing, in the course of construing the term "child" in the chemical-
endangerment statute, that "[c]learly, for an unborn child, the mother's
womb is an essential part of its physical circumstances"). Indeed, even
with regard to IVF, a mother's womb is obviously an indispensable part
of pregnancy. See Maher v. Vaughn, Silverberg & Assocs., LLP, 95 F.
Supp. 3d 999, 1002 n.1 (W.D. Tex. 2015) (describing IVF as "a multi-step
medical procedure," and listing the final steps of that process to be "the
grown embryos are transferred into the patient's uterus" and then "the
patient takes supplemental hormones for the ensuing nine to eleven
days, and if an embryo implants in the lining of the patient's uterus and
grows, a pregnancy can result").
57
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-- simply assuming that the term "minor child" includes frozen embryos
The main opinion then goes on in Part A.2. of its analysis to provide
portion of the main opinion also strikes me as strained given the history
action for wrongful death at common law. See, e.g., Ex parte Bio-Med.
Applications of Alabama, Inc., 216 So. 3d 420, 422 (Ala. 2016) (" ' "A
common law." ' " (quoting Ex parte Hubbard Props., Inc., 205 So. 3d 1211,
1213 (Ala. 2016), quoting in turn Waters v. Hipp, 600 So. 2d 981, 982
(Ala. 1992))); Giles v. Parker, 230 Ala. 119, 121, 159 So. 826, 827 (1935)
of a human being; and hence no right of action exists under the common
171 Ala. 609, 611-12, 55 So. 104, 104 (1911) ("It has been decided and
many times reaffirmed by this court that actions under [the wrongful-
death statutes] are purely statutory. There was no such action or right of
action at common law."). This was also true for the wrongful death of a
minor child. See White v. Ward, 157 Ala. 345, 349, 47 So. 166, 167 (1908)
("There was no right of action at the common law for the death of the
child. … The right to recover damages for its death is therefore purely
statutory.").
remedy that erroneous legal thinking. See, e.g., Suell v. Derricott, 161
Ala. 259, 262, 49 So. 895, 897 (1909) ("Statutes like ours were clearly
intended to correct what was deemed a defect of the common law, that
the right of action based on a tort or injury to the person died with the
person."); King v. Henkie, 80 Ala. 505, 509 (1886) ("The purpose of this,
and like legislation, was clearly to correct a defect of the common law, by
a rule of which it was well settled, that a right of action based on a tort
or injury to the person, died with the person injured. Under the maxim,
death statute, Act No. 62, Ala. Acts 1871-72, p. 83, which was titled "AN
repeatedly noted in our cases. See, e.g., Stinnett v. Kennedy, 232 So. 3d
202, 215 (Ala. 2016) (noting "the shared purpose of the Wrongful Death
Ala. 65, 68, 175 So. 2d 759, 761 (1965))); Eich, 293 Ala. at 100, 300 So. 2d
at 358 ("[T]he pervading public purpose of our wrongful death statute ...
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..."); Huskey, 289 Ala. at 55, 265 So. 2d at 597 ("One of the purposes of
law certainly can be broader than its corollary in criminal law, but
nothing requires the civil law to be read more broadly, particularly given
§ 26-23H-1 et seq., Ala. Code 1975, which was enacted in 2019 -- well
statutes, (and also after the Sanctity of Unborn Life Amendment, i.e.,
Art. I, § 36.06, Ala. Const. 2022) -- defines an "unborn child" exactly the
same way the Brody Act defines a "person": "A human being, specifically
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to support the decision. Despite asserting at the outset of its analysis that
"the Court today need not address" questions such as "the application of
28It is, perhaps, telling that the plaintiffs and the main opinion
chose to insert a hypothetical federal equal-protection issue given that
there is no express equal-protection clause in the Alabama Constitution,
a fact this Court has noted on several occasions. See, e.g., Mobile
Infirmary Ass'n v. Tyler, 981 So. 2d 1077, 1104 (Ala. 2007) (observing
that " 'this Court has acknowledged that the Alabama Constitution
contains no equal-protection clause ….' " (quoting Mobile Infirmary Med.
Ctr. v. Hodgen, 884 So. 2d 801, 813 (Ala. 2003), and citing Ex parte Melof,
735 So. 2d 1172 (Ala. 1999))).
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ignores the fact that it is not now -- or for the foreseeable future --
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observation that "[a]ll parties to these cases, like all members of this
language provided in the Wrongful Death of a Minor Act and the manner
in which our cases have interpreted it. Under those guideposts, today's
leadership in this area of the law given the numerous policy issues and
serious ethical concerns at stake,31 and the fact that there is little
31See, e.g., Yehezkel Margalit, From (Moral) Status (of the Frozen
Embryo) to (Relational) Contract and Back Again to (Relational Moral)
Status, 20 Ind. Health L. Rev. 257, 257 (2023) ("The existing hundreds of
thousands of unused frozen embryos, coupled with the skyrocketing rate
of divorce, raise numerous moral, legal, social, and religious dilemmas.
Among the most daunting problems are the moral and legal status of the
frozen embryo; what should its fate be in the event of conflicts between
the progenitors?; and whether contractual regulation of frozen embryos
is valid and enforceable."); Caroline A. Harman, Defining the Third Way
-- the Special-Respect Legal Status of Frozen Embryos, 26 Geo. Mason L.
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intends.
(" 'As science races ahead, it leaves in its trail mind-numbing ethical and
legal questions.' " (quoting Kass v. Kass, 91 N.Y. 2d 554, 562, 696 N.E.2d
174, 178, 673 N.Y.S. 2d 350, 354 (1998) (citing John A. Robertson,
Children of Choice: Freedom and The New Reproductive Technologies
(1994))).
These cases are not about when life begins, nuances of statutory
state, to help us. 33 Regrettably, these cases use the specter of destroying
to cynically inflame worries about the sanctity of life under Alabama law.
protections as a fetus inside a mother's womb. Parsing the Brody Act, Act
No. 2006-419, Ala. Acts 2006, codified as § 13A-6-1, Ala. Code 1975
clear from the four corners of the Brody Act that the legislative intent
for the murder of an unborn child was impossible. See Act No. 77-607,
§ 2001(2), Ala. Acts 1977 (amended in 2006 by the Brody Act) (" 'Person,'
being who had been born and was alive at the time of the homicidal act."
(emphasis added)). The Brody Act eliminated not only this born-alive
requirement but also any viability threshold to create the bright-line rule
special writings in Gentry v. Gilmore, 613 So. 2d 1241, 1245 (Ala. 1993)
(Houston, J., concurring in the result), and Lollar v. Tankersley, 613 So.
2d 1249, 1253 (Ala. 1993) (Houston, J., concurring in the result), which
"emphasized the need for congruence between the criminal law and our
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2011), this Court held "that the Wrongful Death [of a Minor] Act permits
action may be maintained under the Wrongful Death of a Minor Act for
unwilling to entertain.
have repeatedly stated that " '[a] court has a duty to avoid constitutional
questions unless essential to the proper disposition of the case.' " Lowe v.
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Fulford, 442 So. 2d 29, 33 (Ala. 1983) (quoting trial court's order citing
other cases). The majority believes the word "child" is unambiguous, yet
that 'protect[s] ... the rights of the unborn child' equally with the rights
is the public policy of this state to ensure the protection of the rights of
the unborn child in all manners and measures lawful and appropriate."
unborn life. Therefore, § 36.06 merely reaffirms that "the judicial branch
may not exercise the legislative or executive power." Art. III, § 42(c), Ala.
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that authority lies only with the People of this State, acting through their
elected representatives.
outside the purview of this Court, and they are more appropriately
more into a legislative act than the legislature did so itself. Thus, as to
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of a Minor Act ("the Wrongful Death Act"), see § 6-5-391, Ala. Code 1975,
damages for the loss of frozen embryos. This is a question of the meaning
1872.
on the sanctity of life cannot change the meaning of words enacted by our
profoundly difficult moral questions, our Court must stay within the
letting the Legislature decide changes is one of the basic teachings of the
Women's Health Organization, 597 U.S. 215 (2022). In that case, the
United States Supreme Court overruled Roe v. Wade, 410 U.S. 113
(1973), and returned the hotly disputed issue of abortion to the citizens
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matters of great social significance and moral substance." 597 U.S. at 292
and 302. The Supreme Court further explained that it " 'has neither the
authority nor the expertise to adjudicate those disputes' " and that
" 'courts do not substitute their social and economic beliefs for the
Over the years, our Court has repeatedly said the same thing.
Specifically, our Court has made clear that we are "not at liberty to
Legislature." Ex parte Carlton, 867 So. 2d 332, 338 (Ala. 2003). Further,
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that departed from the rule that the Legislature -- and not this Court --
updates statutes. For example, in Eich v. Town of Gulf Shores, 293 Ala.
95, 99, 300 So. 2d 354, 357 (1974), this Court wrote that "it is often
necessary to breathe life into existing laws less they become stale and
shelfworn" "in order that existing law may become useful law to promote
It is not our role to expand the reach of a statute and "breathe life"
whether a law has become "stale" or "shelfworn." 34 This is the same error
argue that the words in our Constitution should evolve over time.35
34See Craft v. McCoy, 312 So. 3d 32, 37 (Ala. 2020) (recognizing that
"'"'"'when determining legislative intent from the language used in a
statute, a court may explain the language, but it may not detract from or
add to the statute'"'"'") (citations omitted)); and Ex parte Coleman, 145
So. 3d 751, 758 (Ala. 2013) (recognizing that " '[t]he judiciary will not add
that which the Legislature chose to omit' " (quoting Ex parte Jackson, 614
So. 2d 405, 407 (Ala. 1993))).
updating. If our Court does "breathe life" into a law by expanding its
"[t]o the end that the government of the State of Alabama may be a
government of laws and not of individuals, … the judicial branch may not
exercise the legislative or executive power." Ala. Const. 2022, Art. III, §
42(c). Substituting our own meaning "turn[s] this Court into a legislative
body, and doing that, of course, would be utterly inconsistent with the
are real advantages to the Legislature -- and not this Court -- making
1089, 1097 (2023) (explaining that "[t]here is a reason that the people
think they are better at it and better situated to be accountable for their
whereas the drafters of the Constitution of the United States did not.36
The facts of these cases certainly illustrate why the Legislature is best
Why I Dissent
principle -- that is, that the legislative branch and not the judicial branch
I also dissent because I believe the main opinion overrules our recent
definition of "minor child" in the Wrongful Death Act. Both the original
public meaning and this recent caselaw indicate the same result here --
that the Wrongful Death Act does not address frozen embryos.
reached the conclusion the main opinion reaches. And, the main opinion's
YouTube 19:14 (Sep. 21, 2023) (at the time of this decision, this oral-
ending this medical procedure is good or bad -- but it doubtless will have
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the Legislature -- not this Court -- address these issues through the
legislative process.
main opinion does not reach the second question presented in these
appeals -- that is, whether the trial court prematurely dismissed the
argument: "[s]o, is it your position that … these were lives?" And they
responded: "It is, Justice Cook. I think that the … embryo is a life, but
support of the dismissal of those claims. On the one hand, they allege
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because their frozen embryos are not "minor children" under the
Wrongful Death Act. On the other hand, they allege that the trial court
because their frozen embryos each represent "a life." I am deeply troubled
by this argument and the consequences that could result from adopting
this position.
reach this "catch-22" argument at this time because it is simply too soon
this reason that I would reverse the trial court's dismissal of the
action at common law." Kennedy v. Davis, 171 Ala. 609, 611-12, 55 So.
action.
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and the Act was later codified in the Code of Alabama in 1876. See Ala.
Code 1876, § 2899. The Act states, in relevant part, that "[w]hen the
negligence of any person, … the father, or the mother, ... of the minor
Unfortunately, the Wrongful Death Act does not define the term
"minor child." Although the Act was last amended in 1995, see Ala. Acts
1995, Act No. 95-774, § 1, the phrase "[w]hen the death of a minor child
from the Act's initial inception in 1872, and no change has ever been
Legislature, this Court must decide how to interpret the meaning of that
means that we should apply the original meaning of the words as those
words were used in the Act when it was passed in 1872. In other words,
has observed, "the meaning of a law is its original public meaning, not its
emphasis in original); see also Barnett v. Jones, 338 So. 3d 757, 768 (Ala.
192, 207 (Ala. 2022) (Mitchell, J., concurring specially); Gulf Shores City
Bd. of Educ. v. Mackey, [Ms. 1210353, Dec. 22, 2022] __ So. 3d __, __ (Ala.
language, would have understood the text at the time it was issued."
(Emphasis added). 38 See also id. at 7892 (referring to this as the "fixed-
Prime Inc. v. Oliveira, 586 U.S. ____, ____, 139 S. Ct. 532, 539 (2019)
meaning ... at the time Congress enacted the statute."' Wisconsin Central
Ltd. v. United States, 585 U.S. ____, ____, 138 S. Ct. 2067, 2074, 201 L.
Ed. 2d 490 (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct.
important to give words in statutes the meaning they had when they
were adopted to avoid changing what the law is. Scalia & Garner, supra,
States Court of Appeals for the Eleventh Circuit, has cited Reading Law
numerous times." 74 Ala. L. Rev. at 1107.
at 1096.
statute helps this Court to stay within its constitutional role, which is a
a new meaning, the law is changed; and changing written law, like
adopting written law in the first place, is the function of the first two
officials and their delegates."). After all, if judges could freely invest old
statutory terms with new meanings, this Court would risk amending
The common law answers the question whether the term "minor
child" as used in the Wrongful Death Act was broad enough in 1872 to
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law that the common law governs unless expressly changed by the
statutes passed by our Legislature. Our Court has repeatedly held that
to abrogate it, further than may be expressed, or than the case may
absolutely require.'" State v. Grant, [Ms. 1210198, Sept. 9, 2022] ____ So.
3d ____, ____ (Ala. 2022) (quoting Beale v. Posey, 72 Ala. 323, 330 (1882))
(emphasis added); see also Ex parte Christopher, 145 So. 3d 60, 65 (Ala.
common law] are presumed not to alter the common law in any way not
expressly declared' " (quoting Arnold v. State, 353 So. 2d 524, 526 (Ala.
40See also Holmes v. Sanders, 729 So. 2d 314, 316 (Ala. 1999)
(" '[T]he common law is the base upon which all of the laws of this State
have been constructed, and when our courts are called upon to construe
a statute, … they must read the statute in light of the common law.' ")
(citation omitted); Ivey v. Wiggins, 276 Ala. 106, 108, 159 So. 2d 618, 619
(1964) (recognizing that "[l]egislative enactments in modification of the
common law should be clear and such as to prevent reasonable doubt as
to the legislative intent and of the limits of such change"). Further
"statutes being in derogation of the common law, must be strictly
construed, and cannot be extended in their operation and effect by
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The Alabama Code also expressly mandates that the common law
shall, together with such institutions and laws, be the rule of decisions,
and shall continue in force, except as from time to time it may be altered
statute that uses a common-law term, without defining it, adopts its
Singer, Statutes and Statutory Construction § 69:9 (7th ed. 2010) (quoted
So, what did the common law indicate in 1872? There is no doubt
that the common law did not consider an unborn infant to be a child
doubtful implication." Mobile Battle House, Inc. v. Wolf, 271 Ala. 632,
639, 126 So. 2d 486, 493 (1961) (emphasis added).
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homicide liability. In fact, for 100 years after the passage of the Wrongful
Death Act, our caselaw did not allow a claim for the death of an unborn
infant, confirming that the common law in 1872 did not recognize that an
unborn infant (much less a frozen embryo) was a "minor child" who could
be killed.
For example, in 1926, this Court, for the first time, addressed the
issue whether the Wrongful Death Act permitted claims for the death of
an unborn fetus who died from prenatal injuries. Citing cases from other
Co., 214 Ala. 611, 612, 108 So. 566, 566 (1926), held that the Wrongful
Death Act did not permit recovery for injuries during pregnancy that
" 'The doctrine of the civil law and the ecclesiastical and
admiralty courts … that an unborn child may be regarded as
in esse … is a mere legal fiction, which, so far as we have been
able to discover, has not been indulged in by the courts of
common law to the extent of allowing an action by an infant
for injuries occasioned before its birth. If the action can be
maintained, it necessarily follows that an infant may
maintain an action against its own mother for injuries
occasioned by the negligence of the mother while pregnant
with it. We are of opinion that the action will not lie.' "
214 Ala. at 612, 108 So. at 567 (quoting Allaire v. St. Luke's Hosp., 184
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Ill. 359, 368, 56 N.E. 638, 640 (1900)) (emphasis added). We emphasized:
child or its personal representative." 214 Ala. at 612, 108 So. at 566
(emphasis added).
See, e.g., Birmingham Baptist Hosp. v. Branton, 218 Ala. 464, 467, 118
So. 741, 743 (1928) (recognizing that "[t]his court has established a
general line of demarcation between the civil rights of the mother and
and child by the birth; and parental injury before the birth is no basis for
Allen, 227 Ala. 615, 619, 151 So. 468, 471 (1933) (recognizing that "[s]o
long as the child is within the mother's womb, it is a part of the mother,
and for any injury to it, while yet unborn, damages would be recoverable
Thus, the common law in Alabama before 1872, and for 100 years
afterward, was clear: " 'The doctrine of the civil law … that an unborn
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not been indulged in by the courts of common law to the extent of allowing
an action by an infant for injuries occasioned before its birth.' " Stanford,
214 Ala. at 612, 108 So. at 566 (citation omitted; emphasis added). 41
The main opinion provides four responses to the position that the
common law did not consider an unborn infant to be a minor child capable
infants, (3) that William Blackstone (among other things) "grouped" the
"rights" of unborn children with the "Rights of Persons," and (4) that the
First, the main opinion notes that "[i]t is true, as Justice Cook
homicide liability for killing an unborn child unless the prosecution could
prove that the child had been 'born alive' before dying from its injuries."
____ So. 3d at ____ n.6. Nevertheless, the main opinion goes on to assert
that the common-law "born-alive" rule was "an evidentiary rule rather
article from 2009, which in turn relies on a second law-review article from
42The main opinion also asserts that we can ignore the common-law
criminal-law rule that it admits existed, because the criminal law has
always been "'out of step with the treatment of prenatal life in other
areas of law.'" ____ So. 3d at ____ n.6 (quoting Dobbs, 597 U.S. at 247).
It does not cite any Alabama law for this assertion.
Further, Dobbs did not say that the criminal law could be ignored
in determining the meaning of the common law. Instead, the main
opinion's quote from Dobbs merely concerned a debate over the "basis"
for a different common-law rule (the quickening rule) -- an issue that the
Dobbs Court did not even decide. 597 U.S. at 247.
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1987. 43 See id. (citing Joanne Pedone, Filling the Void: Model Legislation
for Fetal Homicide Crimes, 43 Colum. J. L. & Soc. Probs. 77, 82 (2009),
Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563,
586 (1987)).
that this common law was a substantive rule of law -- both in the criminal
context and in the civil context. Stanford, 214 Ala. at 612, 108 So. at 567
23 So. 671, 674 (1898) (recognizing that " '[a]n infant in its mother's
womb, not being in rerum natura, is not considered as a person who can
Crimes (6th ed.)) (emphasis added)). The main opinion does not cite or
indicate the original public meaning of the statute (that is, what a
"reasonable reader" at the time of passage understood the law to be). The
Second, the main opinion argues that the "leading dictionary of that
time defined the word 'child' as 'the immediate progeny of parents' and
indicated that this term encompassed children in the womb." ____ So. 3d
the first results that come up." Mitchell, supra, at 1091. Instead, "words
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are given meaning by their context." Scalia & Garner, supra, at 56.
Here, the context indicates that the main opinion is mistaken. The
cited dictionary does not "indicate[] that this term encompassed children
in the womb." Instead, it indicates the opposite. The same first definition
of "child" also states: "The term is applied to infants from their birth; but
term was understood in 1872. This general definition also does not
contradict the common law in any way. As explained above, the common
law (and Alabama law) is definite, and it does indicate that, in 1872, the
public meaning of "minor child" as used in the Wrongful Death Act did
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Commentaries is mistaken.
fact, the snippets quoted by the main opinion do not state, one way or the
other, whether an unborn infant could be killed under the common law
(whether for civil or criminal purposes). Second, how a list of rights were
explanation for why this is even relevant, much less important. Third,
although the main opinion's assertion that children share the "same right
to life" is certainly true, it does not help explain why a frozen embryo is
a "minor child" as that term was understood in 1872 when the Act was
adopted.
killed."
understood in 1872 in the Wrongful Death Act. Stanford, 214 Ala. at 612,
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108 So. at 567 (1926) (concluding "'that an unborn child may be regarded
discover, has not been indulged in by the courts of common law to the
birth'" (citation omitted)). And, our Court has made clear that " 'statutes
alter the common law in any way not expressly declared.' " Ex parte
Wrongful Death Act must be done by the Legislature and not this Court.
unless we are willing to overrule it. After the cases cited above, the next
Smith, 289 Ala. 52, 265 So. 2d 596 (1972). In Huskey, for the first time,
100 years after the passage of the Wrongful Death Act, we allowed an
action for unborn infant who was viable at the time of a prenatal injury
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and thereafter was born alive, but who later died, thus partially
overruling Stanford.
was our Court's recognition that the purpose and reach of the Wrongful
"By the criminal law, it is a great crime to kill the child after
it is able to stir in the mother's womb, by an injury inflicted
upon the person of the mother, and it may be murder if the
child is born alive and dies of prenatal injuries. Clarke v.
State, 117 Ala. 1, 23 So. 671 (1897). One of the purposes of our
wrongful death statute is to prevent homicides. Bell v. Riley
Bus Lines, [257 Ala. 120, 57 So. 2d 612 (1952)]. If we
continued to follow Stanford, which followed then existing
precedent, a defendant could be responsible criminally for the
homicide of a fetal child but would have no similar
responsibility civilly. This is incongruous."
Huskey, 289 Ala. at 55, 265 So. 2d at 597-98 (second and third emphasis
added).
Then, in 1993, our Court made clear that it would not expand
recovery under the Wrongful Death Act beyond that which was expressly
provided in the Act absent a clear direction from the Legislature. First,
would decline to hold that the Wrongful Death Act "creates a cause of
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action for the wrongful death of a fetus that has never attained viability"
and noted that "it appears that no court in the United States has, without
that attained in this case." Then, in Gentry v. Gilmore, 613 So. 2d 1241,
(Emphasis added.)
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homicide statutes, given that the avowed public purpose of the wrongful
death statute is to prevent homicide and to punish the culpable party and
not to compensate for the loss." Gentry, 613 So. 2d at 1245 (Houston, J.,
Lollar and Gentry, the Alabama Legislature enacted the "Brody Act," Act
No. 2006-419, Ala. Acts 2006, codified as § 13A-6-1, Ala. Code 1975. The
Code 1975.
"[A] human being who had been born and was alive at the time
of the homicidal act."
See Act No. 607, § 2001(2), Ala. Acts 1977, formerly codified as § 13A-6-
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1(2) (emphasis added). After the passage of the Brody Act, however, the
Following the passage of the Brody Act, our Court decided Mack v.
Carmack, 79 So. 3d 597 (Ala. 2011), in which we held that a plaintiff could
bring a claim under the Wrongful Death Act for the death of a previable
fetuses from homicidal acts." 79 So. 3d at 610. We also explained that the
Death Act, is to prevent homicide and that "this Court repeatedly has
emphasized the need for congruence between the criminal law and our
1(a)(3)," that the Wrongful Death Act should likewise permit an action
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for the death of the plaintiff's previable, in utero fetus given that the
the purpose of those statutes is to prevent homicide and " 'to punish the
culpable party and not to compensate for the loss.' " Id. at 610 (quoting
Gentry, 613 So. 2d at 1245 (Houston, J., concurring in the result); and
Five years after this Court's decision in Mack, our Court reached
that case, we explained that "borrowing the definition of 'person' from the
criminal Homicide Act to inform [us] as to who is protected under the civil
Wrongful Death Act made sense." 232 So. 3d at 215 (emphasis added).
In the present appeals, the parties have neither asserted that our
holdings or reasoning in either Mack or Stinnett are wrong, nor have they
Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala. 2006) (noting absence
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The main opinion alleges that this Court's decisions in Mack and
Stinnett do not "mean that the definition of 'child' in the Wrongful Death
opinion alleges that, because criminal liability is "more severe than civil
almost always narrower than the conduct that can support a civil suit."
contrary is "not only illogical, it was rejected in Stinnett itself." ____ So.
3d at ____. Based on the foregoing, the main opinion concludes that the
expressly stated that it was "borrowing the definition of 'person' from the
criminal Homicide Act to inform [us] as to who is protected under the civil
Wrongful Death Act." 232 So. 3d at 215 (emphasis added). By using the
clearer our Court could have been that the definitions of the terms
"person" and "minor child" were to be interpreted the same. Thus, the
main opinion is simply incorrect when it states that Stinnett "did not say
than civil law, but it is also true that definitions of terms can be the same
for the wrongful death of her unborn fetus pursuant to the Wrongful
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Wrongful Death Act. See Stinnett, 232 So. 3d at 214-15 (citing § 13A-6-
1(b), Ala. Code 1975, which provides a defense to homicide for a physician
homicide statutes and the civil Wrongful Death Act. Therefore, this
Court held, the defendant could be liable for medical malpractice even if
232 So. 3d at 215 (emphasis added); ____ So. 3d at ____ (quoting the same
Stinnett made clear that our holding on liability standards had no impact
on our decision to "borrow[]" the definition of "person" (that is, the victim)
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illogical given the changes brought about by the Brody Act.46 The
statutes beyond the common law when it passed the Brody Act. In sharp
contrast, the Legislature has never extended the relevant portion of the
Wrongful Death Act, despite the passage of 150 years. Yet, the main
opinion now decides that the definition in this unamended civil statute
In sum, the main opinion overrules Mack and Stinnett47 sub silentio
47The year after this Court decided Mack, supra, it was once again
called upon to address the reach of the Wrongful Death Act in Hamilton
v. Scott, 97 So. 3d 728 (Ala. 2021). The main opinion quotes Hamilton for
the proposition that a wrongful-death-act claim can be brought for "'any
unborn child.'" ____ So. 3d at ____ (quoting Hamilton, 97 So. 3d at 735).
This quote is correct, but it does not answer the relevant question in these
cases -- that is, whether a frozen embryo is a "minor child" as that term
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was used in 1872 in the Wrongful Death Act. Further, Hamilton did not
change the holding in Mack and instead expressly stated that "Mack is
now controlling precedent …. Therefore, we will apply Mack in deciding
this appeal." Hamilton, 97 So. 3d at 735. Moreover, to the extent that
there is any confusion about whether the homicide statutes' definition of
"person" has been "borrow[ed]" (and thus is both a "floor" and a "ceiling"
for the scope of the term "minor child" in the Wrongful Death Act),
Stinnett governs because it was decided after Hamilton.
Here, we are called upon to decide a question that this Court has
not decided before -- whether a frozen embryo is a "minor child" under
the Wrongful Death Act. There are two possible approaches to this: (1)
follow the holding of Mack and Stinnett (that is, use the homicide
definition of "person" adopted by the Legislature in the criminal-homicide
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the Brody Act -- a question that is hotly debated in the briefs. Because
As noted above, after the passage of the Brody Act, the definition of
child in utero." On the one hand, the defendants argue strongly that the
therefore would not include a frozen embryo, which was not added). On
the other hand, the plaintiffs argue just as strongly that this phrase is
First, this Court has recognized that both the preamble and the title
of an act may be used to resolve any ambiguities in the text. See Newton
v. City of Tuscaloosa, 251 Ala. 209, 218, 36 So. 2d 487, 494 (1948)
(recognizing that "both the preamble and the title of an act may be looked
clause"); City of Bessemer v. McClain, 957 So. 2d 1061, 1075 (Ala. 2006)
(noting that our Court "can also look at the title or preamble of the act");
The Brody Act provides that it "shall be known as the 'Brody Act,'
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when she was eight and one-half months pregnant." Act No. 2006-419, §
4. Likewise, the title to the Brody Act provides that it is "[a]n act, [t]o
unborn child … [and] to name the bill 'Brody Act' in memory of the
unborn son of Brandy Parker, whose death occurred when she was eight
Based on the contents of the Brody Act and its title, it seems quite
causes the death of a "human being" "in utero." In other words, the
like Brody Parker who died in utero. Our caselaw makes clear that we
must presume that the terms of a statute mean what they were designed
Holmes v. Sanders, 729 So. 3d 314, 316 (Ala. 1999) (explaining that this
Court presumes " 'that the legislature did not intend to make any
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homicide statute, which made clear that only a "human being" could be
the victim of a murder. That statute read, in relevant part, that "every
and 1977 used the term "human being" to describe the victim of murder
After the passage of the first homicide statute, this Court held that
49See also Cook v. Meyer Bros., 73 Ala. 580, 583 (1883) (noting the
"presumption … that the language … of the statute import[s] the
alteration or change it was designed to effect, and [its] operation will not
be enlarged by construction ….").
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So. at 674, this Court wrote that " '[a]n infant in its mother's womb, not
within the description of murder ….' " (Quoting 3 Russell on Crimes (6th
rule and defined the term "person" as "a human being who had been born
and was alive at the time of the homicidal act." Former § 13A-6-1(2). That
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In short, the common law was clear that an unborn infant was "'not
at 674 (citation omitted). The statutory law did not change this until the
except to the extent that it has been expressly changed by the Brody Act
inconsistent with our caselaw cited above holding that " '[a]ll statutes are
further than may be expressed, or than the case may absolutely require.' "
Grant, ____ So. 3d at ____ (citing and quoting Beale v. Posey, 72 Ala. at
330).51
does not fit within the statutory definition of "person" as that term is used
The main opinion also argues that, even if the word "child" in the
this state to ensure the protection of the rights of the unborn child in all
added). The Chief Justice also devotes his special concurrence to this
argument.
The first problem with this argument is that there is nothing in the
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was one here), and the main opinion cites no authority supporting such a
Death Act or (2) whether we should protect frozen embryos via the
Death Act was passed in 1872, whereas § 36.06 was passed in 2018.
wanted to change the words in the statute, they should have changed the
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not agree with his discussion of the "Effect of Constitutional Policy." ____
told "all three branches of government what they ought to do" in § 36.06.
____ So. 3d at ____ (Parker, C.J., concurring specially). The question for
for money damages, for the loss of a frozen embryo. There is no language
237 (noting that a right to abortion "is not mentioned anywhere in the
Constitution").
The third difficulty with this argument is that it does not rebut any
opinion, Justice Shaw cites no legal authority that this lack of any
explained above.
on … seeking a civil remedy for injuries done to the unborn," ____ So. 3d
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citation to (1) the Wrongful Death Act itself, (2) § 36.06(b) (analyzed in
full earlier), and (3) two cases that support my position (as explained
the unborn" (as Justice Shaw frames the issue). ____ So. 3d at ____
is whether the common law can help this Court determine if a frozen
embryo is within the meaning of the term "minor child" in the Wrongful
Death Act.
plurality opinion from this Court and § 1-3-1, Ala. Code 1975, he contends
that Alabama statutory law "'does not provide'" that the "'"common law
(quoting Swartz v. United States Steel Corp., 293 Ala. 439, 446, 304 So.
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He argues "'[o]n the contrary,'" Alabama law merely provides that the
Court has repeatedly (and very recently) broadly stated: "'All statutes
____ So. 3d at ____, and " 'statutes [in derogation or modification of the
common law] are presumed not to alter the common law in any way not
More fundamentally, Justice Shaw does not explain how using the
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Death Act is "inconsistent" with "'the constitution, the laws, and the
above, any changes that have been made in this area of the law have been
made incrementally by the Legislature over time and have only gone so
this Court remains bound by the original public meaning of that term as
Death Act.
53Like the main opinion, Justice Shaw argues that the definition of
"person" in the criminal-homicide statutes "does not limit the
determination whether an in vitro embryo is a 'minor child' for purposes
of a civil-law action under the Wrongful Death Act." ____ So. 3d at ____
(Shaw, J., concurring specially). But, he cites no legal authority other
than referring to the main opinion, and therefore he is mistaken for all
the reasons explained above.
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action. See, e.g., Penniman v. University Hosps. Health Sys., Inc., 130
N.E.3d 333, 339 (Ohio Ct. App. 2019) (holding that patients could not
Mayo Clinic Arizona, 211 Ariz. 386, 400, 121 P.3d 1256, 1270 (Ct. App.
statute); and Davis v. Davis, 842 S.W.2d 588, 594 (Tenn. 1992) (holding
"persons").
other states; however, when we are the sole outlier, it should cause us to
The main opinion's holding will mean that the creation of frozen
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forever or risk the penalty of a Wrongful Death Act claim for punitive
damages. 54
doubt that there will be fewer babies born. On the other hand, there are
powerful moral and policy arguments supporting the notion that ending
the creation, use, and destruction of frozen embryos is a good thing and
role to take a position one way or another on this issue. Even so, ending
citizens for years to come and the babies who will not be born. The solemn
54The main opinion notes, but does not reach, the defendants'
possible defenses based upon contracts between the IVF provider and the
plaintiffs. Like the main opinion, I do not reach the possible defenses.
However, no medical provider would depend upon the contract argument
to continue creating and maintaining frozen embryos in the future, given
this significant legal uncertainty and the potential to incur a significant
punitive damage penalty.
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the Legislature, not this Court. I thus urge the Legislature to promptly
services to them. 55
The main opinion alleges that I have conceded that the Wrongful
Death Act would not cover such a hypothetical. It is mistaken. I have
made no such concession. We decide cases on the facts that are before us
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The Chief Justice's special concurrence does not dispute that this
will lead to fewer newborn babies. However, Chief Justice Parker insists
that the IVF process may still survive in Alabama in some other form (for
____ (Parker, C.J., concurring specially); id. at ___ (stating that he fails
to see that "IVF will now end"). In fact, he spends several pages
-- not hypotheticals. The main opinion also alleges that I have failed to
discuss the "constitutional implications" of this hypothetical. ____ So. 3d
at ____ n.3. Again, the reason is simple -- it is a hypothetical and we do
not reach arguments or facts that are not before us, certainly not
hypotheticals about technology that does not even exist. This Court
would be in a position to address the alleged "constitutional implications"
only if the following circumstances existed: (1) such an artificial womb
existed, (2) it was actually used someday in the future, (3) a developing
unborn infant was killed in an artificial womb, (4) the Wrongful Death
Act had not been modified by the Legislature, (5) and we concluded that
this created an Equal Protection Clause conflict. No such circumstances
exist in the present appeals; I therefore see no need to address these
hypothetical scenarios. See, generally, Ex parte Ankrom, 152 So. 3d 397,
431 (Ala. 2013) (Shaw, J., concurring in part and concurring in the result)
("Some of the arguments made ... are premised on hypothetical
situations, different from the facts before us, in which the Code section
might be either unconstitutional as applied or seemingly unwise in its
application. It goes without saying that we cannot strike down the
application of the Code section ... merely because the Code section might
be unconstitutionally applied in some other context." (footnotes omitted)).
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the suggestion that IVF in some other, reduced, form is practical, safe, or
medically sound and has filed two amicus briefs exhaustively explaining
these issues.
It is not the place or time to decide whether the position of the Chief
moral, or ethical. It is not the place because these are questions for the
Legislature and not this Court. And, even if this Court were the correct
forum, it would not be the time because these appeals are at the motion-
Finally, the main opinion does not reach the plaintiffs' negligence
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and wantonness claims because they are pleaded in the alternative and,
instead, holds that those claims are now "moot." ____ So. 3d at ____.
claims, I must reach this issue. For the reasons stated below, I would
Ashland, Inc., 970 So. 2d 755, 772 n.6 (Ala. 2007) (Harwood, J.,
Unabridged Dictionary (2d ed. 2001)."). On the one hand, the defendants
claim that the frozen embryos are not a "minor child." On the other hand,
they claim that because the frozen embryos were "lives," no common-law
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unjust and to incentivize bad conduct. See Huskey, 289 Ala. at 54, 265
So. 2d at 597 (noting that not allowing a recovery "would give protection
to an alleged tort-feasor").
However, I need not reach the question of exactly how our Court
should handle this situation because it is too early in these cases. We are
only at the pleading stage. The plaintiffs argue, under this Court's prior
(Ala. 1985), that the trial court's dismissal of their common-law tort
improper. Under Raley, they argue, once a pleader has set out a cause of
(that is, damages) is not usually a ground for a motion to dismiss for
Accordingly, they contend that the trial court's dismissal of those claims
is due to be reversed.
2d 1097, 1104 (Ala. 1986) (citing Simpson v. Jones, 460 So. 2d 1282
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Church, Inc. v. Moulton, 373 So. 3d 816, 819 (Ala. 2022) (citing Adkison
v. Thompson, 650 So. 2d 859 (Ala. 1994)). " '[P]leadings are to be liberally
construed in favor of the pleader.' " Id. (quoting Adkison, 650 So. 2d at
including but not limited to, [the] value of embryonic human beings …
and for the severe mental anguish …." (meaning that they are seeking
in Raley, supra. They also do not ask that we: (1) revisit the pleading
standard under Alabama law or (2) reconsider our decision in Raley. They
also do not point to any caselaw in which we have affirmed a trial court's
had not been properly pleaded. Based on Raley, supra, I would reverse
claims.
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