Rel: February 16, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2022-0515
_________________________

James LePage and Emily LePage, individually and as parents

and next friends of two deceased LePage embryos, Embryo A
and Embryo B; and William Tripp Fonde and Caroline Fonde,
individually and as parents and next friends of two deceased
Fonde embryos, Embryo C and Embryo D

v.

The Center for Reproductive Medicine, P.C., and

Mobile Infirmary Association d/b/a Mobile Infirmary Medical
Center

Appeal from Mobile Circuit Court

(CV-21-901607)
SC-2022-0515; SC-2022-0579

_________________________

SC-2022-0579
_________________________

Felicia Burdick-Aysenne and Scott Aysenne, in their individual

capacities and as parents and next friends of Baby Aysenne,
deceased embryo/minor

v.

The Center for Reproductive Medicine, P.C., and Mobile

Infirmary Association d/b/a Mobile Infirmary Medical Center

Appeal from Mobile Circuit Court

(CV-21-901640)

MITCHELL, Justice. 1

This Court has long held that unborn children are "children" for

purposes of Alabama's Wrongful Death of a Minor Act, § 6-5-391, Ala.

Code 1975, a statute that allows parents of a deceased child to recover

punitive damages for their child's death. The central question presented

in these consolidated appeals, which involve the death of embryos kept

1These consolidated appeals were originally assigned to another

Justice on this Court; they were reassigned to Justice Mitchell on
December 15, 2023.
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in a cryogenic nursery, is whether the Act contains an unwritten

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

Wrongful Death of a Minor Act applies to all unborn children, regardless

of their location.

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

Fonde and Caroline Fonde are the parents of two other embryos called

"Embryo C" and "Embryo D"; and Felicia Burdick-Aysenne and Scott

Aysenne are the parents of one embryo called "Baby Aysenne."

Between 2013 and 2016, each set of parents went to a fertility clinic

operated by the Center for Reproductive Medicine, P.C. ("the Center"), to

undergo IVF treatments. During those treatments, doctors were able to

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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

the embryos in the Center's "cryogenic nursery," which is a facility

designed to keep extrauterine embryos alive at a fixed stage of

development by preserving them at an extremely low temperature. The

parties agree that, if properly safeguarded, an embryo can remain alive

in a cryogenic nursery "indefinitely" -- several decades, perhaps longer.

The plaintiffs' IVF treatments led to the creation of several

embryos, some of which were implanted and resulted in the births of

healthy babies. The plaintiffs contracted to have their remaining

embryos kept in the Center's cryogenic nursery, which was located within

the same building as the local hospital, the Mobile Infirmary Medical

Center ("the Hospital"). The Hospital is owned and operated by the

Mobile Infirmary Association ("the Association").

The plaintiffs allege that the Center was obligated to keep the

cryogenic nursery secured and monitored at all times. But, in December

2020, a patient at the Hospital managed to wander into the Center's

fertility clinic through an unsecured doorway. The patient then entered

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the cryogenic nursery and removed several embryos. The subzero

temperatures at which the embryos had been stored freeze-burned the

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

asserted claims under Alabama's Wrongful Death of a Minor Act, § 6-5-

391. In the alternative, each set of plaintiffs asserted common-law claims

of negligence (in the LePages and Fondes' case) or negligence and

wantonness (in the Aysennes' case), for which they sought compensatory

damages, including damages for mental anguish and emotional distress.

The plaintiffs specified, however, that their common-law claims were

pleaded "in the alternative, and only [apply] should the Courts of this

State or the United States Supreme Court ultimately rule that [an

extrauterine embryo] is not a minor child, but is instead property." In

addition to those claims, the Aysennes brought breach-of-contract and

bailment claims against the Center.

The Center and the Association filed joint motions in each case

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asking the trial court to dismiss the plaintiffs' wrongful-death and

negligence/wantonness claims against them in accordance with Rules

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

"[t]he cryopreserved, in vitro embryos involved in this case do not fit

within the definition of a 'person' " or " 'child,' " and it therefore held that

their loss could not give rise to a wrongful-death claim.

The trial court also concluded that the plaintiffs' negligence and

wantonness claims could not proceed. Specifically, the court reasoned

that, to the extent those claims sought recovery for the value of embryonic

children, the claims were barred by Alabama's longstanding prohibition

on the recovery of compensatory damages for loss of human life. And to

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

who sustained a physical injury … or were placed in immediate risk of

physical harm …."

The trial court's judgments disposed entirely of the LePages' and

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

trial court did. Both sets of plaintiffs appealed.

Standard of Review

We review a trial court's judgment granting a motion to dismiss de

novo, without any presumption of correctness. Hawkins v. Ivey, 365 So.

3d 1058, 1060 (Ala. 2022).

Analysis

The parties to these cases have raised many difficult questions,

including ones about the ethical status of extrauterine children, the

application of the 14th Amendment to the United States Constitution to

such children, and the public-policy implications of treating extrauterine

children as human beings. But the Court today need not address these

questions because, as explained below, the relevant statutory text is

clear: the Wrongful Death of a Minor Act applies on its face to all unborn

children, without limitation. That language resolves the only issue on

appeal with respect to the plaintiffs' wrongful-death claims and renders

moot their common-law negligence and wantonness claims.

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A. Wrongful-Death Claims

Before analyzing the parties' disagreement about the scope of the

Wrongful Death of a Minor Act, we begin by explaining some background

points of agreement. All parties to these cases, like all members of this

Court, agree that an unborn child is a genetically unique human being

whose life begins at fertilization and ends at death. The parties further

agree that an unborn child usually qualifies as a "human life," "human

being," or "person," as those words are used in ordinary conversation and

in the text of Alabama's wrongful-death statutes. That is true, as

everyone acknowledges, throughout all stages of an unborn child's

development, regardless of viability.

The question on which the parties disagree is whether there exists

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

recognize such an exception because, they say, an unborn child ceases to

qualify as a "child or "person" if that child is not contained within a

biological womb.

8
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The plaintiffs, for their part, argue that the proposed exception for

extrauterine children would introduce discontinuity within Alabama law.

They contend, for example, that the defendants' proposed exception

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

birth canal -- despite this State's longstanding criminal prohibition on

partial-birth abortion, see Ala. Code 1975, § 26-23-3.

The plaintiffs also argue that the defendants' proposed exception

would raise serious constitutional questions. For instance, one latent

implication of the defendants' position -- though not one that the

defendants seem to have anticipated -- is that, under the defendants' test,

even a full-term infant or toddler conceived through IVF and gestated to

term in an in vitro environment would not qualify as a "child" or "person,"

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

2Until recently, there had been a longstanding ethical norm against

artificially gestating human embryos past 14 days of development.
Henry T. Greely, The 14-Day Embryo Rule: A Modest Proposal, 22 Hous.
J. Health L. & Pol'y 147 (2022). But that norm is wavering, and there is
currently nothing stopping "researchers from allowing ex vivo [that is,
9
SC-2022-0515; SC-2022-0579

children were not legal "children" or "persons," then their lives would be

unprotected by Alabama law. The plaintiffs argue that this sort of

unequal treatment would offend the Equal Protection Clause of the 14th

Amendment to the United States Constitution, which prohibits states

from withholding legal protection from people based on immutable

features of their birth or ancestry. See Students for Fair Admissions, Inc.

v. President & Fellows of Harvard Coll., 600 U.S. 181, 208 (2023)

(" 'Distinctions between citizens solely because of their ancestry are by

their very nature odious to a free people whose institutions are founded

upon the doctrine of equality.' " (citations omitted)). 3

extrauterine] human embryos to develop for eight or nine weeks post-

fertilization .... Or to viability .... Or, for that matter, to 38 weeks post-
fertilization and full term." Id. at 154-55; see also Kirstin R.W. Matthews
& Daniel Morali, National Human Embryo and Embryoid Research
Policies: A Survey of 22 Top Research-intensive Countries, 15
Regenerative Med. 1905 (2020) ("While the USA was the first to propose
the 14-day limit, the limit was never passed as a federal law."). There
are, of course, practical limitations on developing extrauterine embryos
to term, but those limitations are shrinking each year due to
"technological advances." See Matthews & Morali, 15 Regenerative Med.
at 1905.

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
10
SC-2022-0515; SC-2022-0579

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.

1. The Text of the Wrongful Death of a Minor Act Applies to

All Children, Without Exception

First enacted in 1872, the Wrongful Death of a Minor Act allows the

parents of a deceased child to bring a claim seeking punitive damages

"[w]hen the death of a minor child is caused by the wrongful act,

omission, or negligence of any person," provided that they do so within

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"

under the Act, regardless of that child's viability or stage of development.

Id. at 611. We reaffirmed that conclusion in Hamilton v. Scott, 97 So. 3d

728 (Ala. 2012), explaining that "Alabama's wrongful-death statute

children created with these "future technologies"). Justice Cook does not,
however, discuss the constitutional implications of that position.
11
SC-2022-0515; SC-2022-0579

allows an action to be brought for the wrongful death of any unborn

child." Id. at 735.

None of the parties before us contest the holdings in Mack and

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

concurring in the result) (citing Merriam-Webster's Collegiate Dictionary

4Justice Cook raises several novel arguments, none of which were

briefed or mentioned by the parties, in support of his view that "the public
meaning of 'minor child' as used in the Wrongful Death [of a Minor] Act
did not include an unborn infant." ___ So. 3d at ____ (Cook, J.,
dissenting). If Justice Cook were correct on that point, then it would
mean that Mack erred by interpreting the Act to protect unborn children.
For the reasons given in this section of the opinion, we are not persuaded
that the unborn were excluded from the original meaning of the term
"child." But even if Justice Cook were correct on that point, the Court
would still apply Mack's definition because, as Justice Cook himself
acknowledges, no party has challenged the Mack line of cases. See id. at
___ (Cook, J., dissenting) (emphasizing that this Court does not overrule
precedent unless asked to do so by the parties and explaining that "the
parties [here] have neither asserted that the holdings or reasoning in
either Mack or Stinnett [v. Kennedy, 232 So. 3d 202 (Ala. 2016),] are
wrong, nor have they asked us to overrule those decisions"). We are
perplexed by Justice Cook's insistence that we have not given Mack due
deference when the bulk of his dissent is animated by the view that Mack
was wrongly decided and that, contrary to its holding, unborn children
are not "children" under the Act after all.
12
SC-2022-0515; SC-2022-0579

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

"child" as an "unborn or newly born human being; foetus, infant");

Webster's Third New International Dictionary 388 (2002) (defining

"child" as "an unborn or recently born human being"). There is simply no

"patent or latent ambiguity in the word 'child'; it is not a term of art and

contains no inherent uncertainty." Ankrom, 152 So. 3d at 431 (Shaw, J.,

concurring in part and concurring in the result).

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

"the immediate progeny of parents" and indicated that this term

encompassed children in the womb. Noah Webster et al., An American

Dictionary of the English Language 198 (1864) ("[t]o be with child

[means] to be pregnant"). 5 And Blackstone's Commentaries, the leading

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
13
SC-2022-0515; SC-2022-0579

authority on the common law, expressly grouped the rights of unborn

children with the "Rights of Persons," consistently described unborn

children as "infant[s]" or "child[ren]," and spoke of such children as

sharing in the same right to life that is "inherent by nature in every

individual." 1 William Blackstone, Commentaries on the Laws of

England 125-26. 6 Those expressions are in keeping with the United

disagree. The language quoted by Justice Cook contrasts newborns with

older children in order to make the point that there is no clear-cut time
at which a young person transitions from childhood to adulthood; it does
not indicate that infants were considered something other than children
prior to their birth, as the definition elsewhere makes clear when it
describes a pregnant woman as being "with child." Another definition on
that same page further drives home the point that unborn children are
"children" when it describes "childbearing" as the act of "bearing
children" in the womb.

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

U.S. 215, 246-48 (2022).

Courts interpreting statutes are required to give words their

" ' "natural, ordinary, commonly understood meaning," ' " unless there is

some textual indication that an unusual or technical meaning applies.

Swindle v. Remington, 291 So. 3d 439, 457 (Ala. 2019) (citations omitted).

Here, the parties have not pointed us to any such indication, which

reflects the overwhelming consensus in this State that an unborn child is

just as much a "child" under the law as he or she is a "child" in everyday

conversation.

Even if the word "child" were ambiguous, however, the Alabama

Constitution would require courts to resolve the ambiguity in favor of

proving causation for prenatal injuries was difficult (quoting Clarke D.

Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other
Legal Anachronisms, 21 Val. U. L. Rev. 563, 586 (1987))). Like the so-
called "quickening rule," the born-alive rule ensured that there was
" 'evidence of life,' " but did not provide a definition of life, and did not
mean that unborn children were considered to be something other than
living human beings. Dobbs, 597 U.S. at 246 (citation omitted); see also
Forsythe, supra, at 586 & n.105.
15
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protecting unborn life. Article I, § 36.06(b), of the Constitution of 2022

"acknowledges, declares, and affirms that it 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." That section, which is

titled "Sanctity of Unborn Life," operates in this context as a

constitutionally imposed canon of construction, directing courts to

construe ambiguous statutes in a way that "protect[s] … the rights of the

unborn child" equally with the rights of born children, whenever such

construction is "lawful and appropriate." Id.7 When it comes to the

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

thing in the Wrongful Death of a Minor Act as it does in everyday

parlance: "an unborn or recently born" individual member of the human

species, from fertilization until the age of majority. See Merriam-

Webster's Collegiate Dictionary 214 (11th ed. 2020) (defining "child");

accord Noah Webster et al., An American Dictionary of the English

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

exception or limitation. As this Court observed in Hamilton, "Alabama's

wrongful-death statute allows an action to be brought for the wrongful

death of any unborn child." 97 So. 3d at 735 (emphasis added).

2. This Court's Precedents Do Not Compel Creation of an

Unwritten Exception for Extrauterine Children

The defendants do not meaningfully engage with the text or history

of the Wrongful Death of a Minor Act. Instead, they ask us to recognize

an unwritten exception for extrauterine children in the wrongful-death

context because, they say, our own precedents compel that outcome.

Specifically, the defendants argue that: (1) this Court's precedents

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require complete congruity between "the definition of who is a person"

under our criminal-homicide laws and "the definition of who is a person"

under our civil wrongful-death laws; (2) extrauterine children are not

within the class of persons protected by our criminal-homicide laws; and

(3) as a result, extrauterine children cannot be protected by the Wrongful

Death of a Minor Act. Appellees' brief in appeal no. SC-2022-0579 at 47;

Appellees' brief in appeal no. SC-2022-0515 at 49.

The most immediate problem with the defendants' argument is that

its major premise is unsound:8 nothing in this Court's precedents

requires one-to-one congruity between the classes of people protected by

Alabama's criminal-homicide laws and our civil wrongful-death laws.

The defendants' error stems from their misreading of this Court's

opinions in Mack and Stinnett v. Kennedy, 232 So. 3d 202 (Ala. 2016).

As mentioned earlier, Mack held, based on "numerous considerations,"

that previable unborn children qualify as "children" under the Wrongful

Death of a Minor Act. 79 So. 3d at 611. One of those considerations

involved the fact that Alabama's criminal-homicide laws -- as amended

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

of viability.' " 79 So. 3d at 600 (quoting Ala. Code 1975, § 13A-6-1(a)(3)).

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

have no similar responsibility civilly.' " 79 So. 3d at 611 (citation

omitted). Stinnett echoed that reasoning. See 232 So. 3d at 215.

The defendants interpret the "incongruity" language in Mack and

Stinnett to mean that the definition of "child" in the Wrongful Death of a

Minor Act must precisely mirror the definition of "person" in our

criminal-homicide laws. But the main opinions in Mack and Stinnett did

not say that. Those opinions simply observed that it would be perverse

for Alabama law to hold a defendant criminally liable for killing an

unborn child while immunizing the defendant from civil liability for the

same offense. The reason that such a result would be anomalous is

because criminal liability is, by its nature, more severe than civil liability

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-- so the set of conduct that can support a criminal prosecution is almost

always narrower than the conduct that can support a civil suit. 9

The defendants flip that reasoning on its head. Instead of

concluding that civil-homicide laws should sweep at least as broadly as

criminal ones (as Mack and Stinnett reasoned), the defendants insist that

the civil law can never sweep more broadly than the criminal law. That

type of maneuver is not only illogical, it was rejected in Stinnett itself:

"[Mack's] attempt to harmonize who is a 'person'

protected from homicide under both the Homicide Act and
Wrongful Death Act, however, was never intended to
synchronize civil and criminal liability under those acts, or
the defenses to such liability. Although we noted that it
would be unfair for a tortfeasor to be subject to criminal
punishment, but not civil liability, for fetal homicide, it
simply does not follow that a person not subject to criminal
punishment under the Homicide Act should not face tort
liability under the Wrongful Death Act. This argument,
followed to its logical conclusion, would prohibit wrongful-
death actions arising from a tortfeasor's simple negligence,
something we have never held to be criminally punishable
but which often forms the basis of wrongful-death actions."

232 So. 3d at 215. As this passage from Stinnett makes clear, the

definition of "person" in criminal-homicide law provides a floor for the

9This reality also helps to illustrate why it is wrong to assume that

the prospect of civil liability for the mishandling of embryos necessarily
raises the spectre of criminal liability for the same conduct.
20
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definition of personhood in wrongful-death actions, not a ceiling. So even

if it is true, as the defendants argue, that individuals cannot be convicted

of criminal homicide for causing the death of extrauterine embryos (a

question we have no occasion to reach), it would not follow that they must

also be immune from civil liability for the same conduct.

3. The Defendants' Public-Policy Concerns Cannot Override

Statutory Text

Finally, the defendants and their amicus devote large portions of

their briefs to emphasizing undesirable public-policy outcomes that, they

say, will arise if this Court does not create an exception to wrongful-death

liability for extrauterine children. In particular, they assert that treating

extrauterine children as "children" for purposes of wrongful-death

liability will "substantially increase the cost of IVF in Alabama" and

could make cryogenic preservation onerous. Medical Association of the

State of Alabama amicus brief at 42; see also Appellees' brief in appeal

no. SC-2022-0515 at 36 (arguing that "costs and storage issues would be

prohibitive").

While we appreciate the defendants' concerns, these types of policy-

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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to the letter of the statute," and to the Constitution, "without indulging

a speculation, either upon the impolicy, or the hardship, of the law."

Priestman v. United States, 4 U.S. (4 Dall.) 28, 30 n.1 in the reporter's

synopsis (1800) (Chase, J., writing for the federal circuit court).

Here, the text of the Wrongful Death of a Minor Act is sweeping and

unqualified. It applies to all children, born and unborn, without

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

true where, as here, the People of this State have adopted a

Constitutional amendment directly aimed at stopping courts from

excluding "unborn life" from legal protection. Art. I, § 36.06, Ala. Const.

2022. 10

10The defendants also suggest that, if extrauterine children are

accorded the same protections under the Wrongful Death of a Minor Act
as unborn children in utero, then providers could be held liable for
routine treatment of ectopic pregnancies -- that is, pregnancies in which
an embryo has implanted in an organ other than the uterus, such as the
fallopian tubes.

The defendants' concerns are misguided. As the parties

acknowledge, ectopic pregnancies almost invariably involve a fatal
medical condition: if left in place, the ectopic embryo will either die from
malnourishment or else grow to the point where it kills the mother -- in
turn causing the embryo's own death. The parties agree that there is
currently no way to treat an ectopic implantation without simultaneously
22
SC-2022-0515; SC-2022-0579

B. Negligence and Wantonness Claims

The second question raised in these consolidated appeals is whether

the trial court erred in dismissing the plaintiffs' common-law negligence

and wantonness claims. As discussed above, both sets of plaintiffs made

clear in their operative complaints that those claims were "alternative"

theories pleaded only as a fallback in case this Court held that

extrauterine children are not protected by the Wrongful Death of a Minor

Act. Since we now hold that the Act does protect extrauterine children,

the plaintiffs' alternative negligence and wantonness claims are moot,

and we affirm the trial court's dismissal of those claims on that basis.

C. Remaining Issues

During oral argument in these cases, the defendants suggested that

the plaintiffs may be either contractually or equitably barred from

pursuing wrongful-death claims. In particular, the defendants pointed

out that all the plaintiffs signed contracts with the Center in which their

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.
23
SC-2022-0515; SC-2022-0579

embryonic children were, in many respects, treated as nonhuman

property: the Fondes elected in their contract to automatically "destroy"

any embryos that had remained frozen longer than five years; the

LePages chose to donate similar embryos to medical researchers whose

projects would "result in the destruction of the embryos"; and the

Aysennes agreed to allow any "abnormal embryos" created through IVF

to be experimented on for "research" purposes and then "discarded." The

defendants contended at oral argument that these provisions are

fundamentally incompatible with the plaintiffs' wrongful-death claims.

If the defendants are correct on that point, then they may be able

to invoke waiver, estoppel, or similar affirmative defenses. But those

defenses have not been briefed and were not considered by the trial court,

so we will not attempt to resolve them here. 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

other outstanding issues on remand.

Conclusion

We reverse the trial court's dismissal of the plaintiffs' wrongful-

death claims in both appeal no. SC-2022-0515 and appeal no. SC-2022-

24
SC-2022-0515; SC-2022-0579

0579. Because the plaintiffs' alternative negligence and wantonness

claims are now moot, we affirm the trial court's dismissal of those claims

on that basis.

SC-2022-0515 -- AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

SC-2022-0579 -- AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

Wise and Bryan, JJ., concur.

Parker, C.J., concurs specially, with opinion.

Shaw, J., concurs specially, with opinion, which Stewart, J., joins.

Mendheim, J., concurs in the result, with opinion.

Sellers, J., concurs in the result in part and dissents in part, with

opinion.

Cook, J., dissents, with opinion.

25
SC-2022-0515; SC-2022-0579

PARKER, Chief Justice (concurring specially).

A good judge follows the Constitution instead of policy, except when

the Constitution itself commands the judge to follow a certain policy. In

these cases, that means upholding the sanctity of unborn life, including

unborn life that exists outside the womb. Our state Constitution contains

the following declaration of public policy: "This state acknowledges,

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

Nov. 6, 2018) (sometimes referred to as "the Sanctity of Unborn Life

Amendment"). As noted in the main opinion, these cases involve unborn

life -- a fact that no party in these cases disputes. Therefore, I take this

opportunity to examine the meaning of the term "sanctity of unborn life"

as used in § 36.06 and to explore the legal effect of the adoption of the

Sanctity of Unborn Life Amendment as a constitutional statement of

public policy.

I. Meaning of "Sanctity"

The Alabama Constitution does not expressly define the phrase

"sanctity of unborn life." But because the parties have raised § 36.06 in

26
SC-2022-0515; SC-2022-0579

their arguments, these cases call for us to interpret what this phrase

means. The goal of constitutional interpretation is to discern the original

public meaning, which is " 'the meaning the people understood a

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

specially) (citation and emphasis omitted). Constitutional interpretation

must start with the text, but it also must include the context of the time

in which it was adopted. Id.; see also Hagan v. Commissioner's Court of

Limestone Cnty., 160 Ala. 544, 554, 49 So. 417, 420 (1909) (holding that

the Alabama Constitution "must be understood and enforced according

to the plain, common-sense meaning of its terms"); Antonin Scalia, A

Matter of Interpretation 37 (new ed. 2018) ("In textual interpretation,

context is everything, and the context of the Constitution tells us not to

expect nit-picking detail, and to give words and phrases an expansive

rather than narrow interpretation -- though not an interpretation that

the language will not bear.").

Helpful sources in interpretation include contemporaneous

dictionaries, but the analysis must also "draw from deeper wells" instead

of relying "solely on dictionaries." Gulf Shores City Bd. of Educ. v.

27
SC-2022-0515; SC-2022-0579

Mackey, [Ms. 1210353, Dec. 22, 2022] ___ So. 3d ____, ____ (Ala. 2022)

(Parker, C.J., concurring in part and concurring in the result). Such

"deeper wells" include (1) the history of the period, (2) similar provisions

in predecessor constitutions, (3) the records of the constitutional

convention, inasmuch as they shed light on what the public thought, (4)

the common law, (5) cases, (6) legal treatises, (7) evidence of

contemporaneous general public understanding, especially as found in

other state constitutions and court decisions interpreting them, (8)

contemporaneous lay-audience advocacy for (or against) its adoption, and

(9) any other evidence of original public meaning, which could include

corpus linguistics. Gulf Shores, ___ So. 3d at ____ (Parker, C.J.,

concurring in part and concurring in the result in part); Young Ams. for

Liberty at Univ. of Alabama at Huntsville v. St. John, [Ms. 1210309, Nov.

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).

Section 36.06 specifically recognizes the sanctity of unborn life.

Nevertheless, the phrase "sanctity of unborn life" involves the same

terms and concepts as the broader and more common phrase, "sanctity of

28
SC-2022-0515; SC-2022-0579

life." Thus, the history and meaning of the phrase "sanctity of life"

informs our understanding of "sanctity of unborn life" as that phrase is

used in § 36.06.

At the time § 36.06 was adopted, "sanctity" was defined as: "1.

holiness of life and character: GODLINESS; 2 a: the quality or state of

being holy or sacred: INVIOLABILITY b pl: sacred objects, obligations,

or rights." Merriam-Webster's Collegiate Dictionary 1100 (11th ed. 2003).

Recent advocates of the sanctity of life have attempted to articulate the

principle on purely secular philosophical grounds. See, e.g., John Keown,

The Law and Ethics of Medicine 3 (2012); Neil M. Gorsuch, The Future

of Assisted Suicide and Euthanasia 157-58 (2009) (arguing that "human

life is fundamentally and inherently valuable" based on the "secular

moral theory" that human life is a "basic good" that "ultimately comes

not from abstract logical constructs (or religious beliefs)"). Such

advocates have preferred to use the term "inviolability" rather than

"sanctity" to avoid what one scholar calls "distracting theological

connotations." Keown, supra, at 3. But even though "inviolability" is

certainly a synonym of "sanctity" in that the meaning of the two words

largely overlap, the two words cannot simply be substituted for each

29
SC-2022-0515; SC-2022-0579

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

term "sanctity," with all of its connotations.

This kind of acceptance is not foreign to our Constitution, which in

its preamble "invok[es] the favor and guidance of Almighty God," pmbl.,

Ala. Const. 2022, and which declares that "all men … are endowed [with

life] by their Creator," Art. I, § 1, Ala. Const. 2022. 11 The Alabama

Constitution's recognition that human life is an endowment from God

emphasizes a foundational principle of English common law, which has

been expressly incorporated as part of the law of Alabama. § 1-3-1, Ala.

Code 1975 ("The common law of England … shall … be the rule of

decisions, and shall continue in force …."). In his Commentaries on the

Laws of England, Sir William Blackstone declared that "[l]ife is the

immediate gift of God, a right inherent by nature in every individual."12

11Accord the philosophy of the United States of America as

expressed in the Declaration of Independence -- "endowed by their
Creator with certain unalienable Rights, that among these are Life …."
The Declaration of Independence para. 2 (U.S. 1776).

12Blackstone went on to state that life "begins in contemplation of

law as soon as an infant is able to stir in the mother's womb." 1 William
30
SC-2022-0515; SC-2022-0579

1 William Blackstone, Commentaries on the Laws of England *125. He

later described human life as being "the immediate donation of the great

creator." Id. at *129.

Only recently has the phrase "sanctity of life" been widely used as

shorthand for the general principle that human life can never be

intentionally taken without adequate justification. The phrase was first

used in the modern bioethical debate by Rev. John Sutherland Bonnell

as the title to his 1951 article opposing euthanasia: The Sanctity of

Human Life. 8 Theology Today 194-201. Glanville Williams later

employed the phrase in his groundbreaking book, The Sanctity of Life

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.,

Blackstone, Commentaries on the Laws of England *125. Similarly,

Alabama law has recognized that human life begins at conception. See
Ex parte Hicks, 153 So. 3d 53, 72 (Ala. 2014); Ex parte Ankrom, 152 So.
3d 397 (Ala. 2013); Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012); Mack v.
Carmack, 79 So. 3d 597 (Ala. 2011); § 26-22-2(8), Ala. Code 1975 (defining
an "unborn child" as "[a]n individual organism of the species Homo
sapiens from fertilization until live birth"); § 26-23A-3(10), Ala. Code
1975 (defining an "unborn child" as "[t]he offspring of any human person
from conception until birth").
31
SC-2022-0515; SC-2022-0579

Manhattan Declaration: A Call of Christian Conscience (Nov. 20, 2009)

(at the time of this decision, this document could be located at:

https://www.manhattandeclaration.org) (referring multiple times to the

"sanctity of life" in response to abortion). 13

The phrase appeared only twice in our precedents before 2018. In

1982, Justice Faulkner used it to describe the argument that so-called

"wrongful birth" actions should not be cognizable at law because the

"sanctity of life" precluded them. Boone v. Mullendore, 416 So. 2d 718,

724 (Ala. 1982) (Faulkner, J., concurring specially). More recently,

however, it was used in a 2014 special concurrence referring to this

Court's decisions in Ex parte Ankrom, 152 So. 3d 397 (Ala. 2013),

Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012), and Mack v. Carmack, 79

So. 3d 597 (Ala. 2011). Ex parte Hicks, 153 So. 3d 53, 72 (Ala. 2014)

(Parker, J., concurring specially) ("This case presents an opportunity for

this Court to continue a line of decisions affirming Alabama's recognition

13Itis worth noting that the Manhattan Declaration was signed by

"Orthodox, Catholic, and Evangelical Christians" who "joined together
across historic lines of ecclesial differences" to speak together on certain
issues, one of which was the sanctity of life. Id. Despite major theological
disagreements, signers from all three branches of Christianity were able
to agree on the sanctity of life.
32
SC-2022-0515; SC-2022-0579

of the sanctity of life from the earliest stages of development. We have

done so in three recent cases [Ankrom, Hamilton, and Mack]; we do so

again today." (footnote omitted)).

But the principle itself -- that human life is fundamentally distinct

from other forms of life and cannot be taken intentionally without

justification -- has deep roots that reach back to the creation of man "in

the image of God." Genesis 1:27 (King James). One 17th-century

commentator has explained the significance of man's creation in God's

image as follows:

"[T]he chief excellence and prerogative of created man is in

the image of his Creator. For while God has impressed as it
were a vestige of himself upon all the rest of the creatures …
so that from all the creatures you can gather the presence and
efficiency of the Creator, or as the apostle [Paul] says, you can
clearly see his eternal power and divinity, yet only man did he
bless with his own image, that from it you may recognize not
only what the Creator is, but also who he is, or what his
qualities are.

"… God did this: (1) so that he might as it were

contemplate and delight himself in man, as in a copy of
himself, or a most highly polished mirror, for which reason his
delights are said to be with the children of men. (2) So that he
might, as much as can be done, propagate himself as it were
in man. … (3) So that he would have on earth one who would
know, love, and worship him and all that is his, which could
not be obtained in the least apart from the image of God ….
(4) So that he might have one with whom he would live most
blessed for eternity, with whom he would converse as with a
33
SC-2022-0515; SC-2022-0579

friend …. Therefore, so that God could eternally dwell and

abide with man, he willed him to be in some manner similar
to him, to bear his image ….

"….

"Therefore, the image of God in man is nothing except a

conformity of man whereby he in measure reflects the highest
perfection of God."

3 Petrus Van Mastricht, Theoretical-Practical Theology 282-85 (Joel R.

Beeke ed., Todd M. Rester trans., Reformation Heritage Books 2021)

(1698-99). 14

Van Mastricht's assessment of the significance of man's creation in

the image of God accords with that of Thomas Aquinas centuries earlier.

Following Augustine, Aquinas distinguished human life from other

things God made, including nonhuman life, on the ground that man was

made in God's image.

14Petrus Van Mastricht (1630-1706) was a Dutch Reformed

theologian and professor at the University of Utrecht. He was a favorite
of Jonathan Edwards, a leading minister in the First Great Awakening
and later President of Princeton University. Edwards opined that, "for
divinity in General, doctrine, Practice & Controversie; or as an [sic]
universal system of divinity, [Van Mastrict's Theoretical-Practical
Theology] is much better than … any other Book in the world, excepting
the Bible." Jonathan Edwards & Stanley T. Williams, Six Letters of
Jonathan Edwards to Joseph Bellamy, 1 New Eng. Q. 226, 230 (footnotes
omitted) (reprinting Edwards's letter to Bellamy dated January 15,
1747).
34
SC-2022-0515; SC-2022-0579

"As Augustine observes, man surpasses other things, not in

the fact that God Himself made man, as though He did not
make other things; since it is written, 'The work of Thy hands
is the heaven,' and elsewhere, 'His hands laid down the dry
land,' but in this, that man is made to God's image."

Thomas Aquinas, Summa Theologica First Part, Treatise on Man,

Question 91, Art. 4 (Fathers of the English Dominican Province trans.,

Benziger Bros., Inc. 1947). Further, Aquinas explained that every man

has the image of God in that he "possesses a natural aptitude for

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

to know and love God. Id., Second Part, Question 1, Art. 8.

Man's creation in God's image is the basis of the general prohibition

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

image of God made he man."). John Calvin, in expounding that text,

explains:

"For the greater confirmation of the above doctrine [of capital

punishment for murder], God declares, that he is not thus
solicitous respecting human life rashly, and for no purpose.
Men are indeed unworthy of God's care, if respect be had only
to themselves; but since they bear the image of God engraven
on them, He deems himself violated in their person. Thus,
35
SC-2022-0515; SC-2022-0579

although they have nothing of their own by which they obtain

the favour of God, he looks upon his own gifts in them, and is
thereby excited to love and to care for them. This doctrine,
however, is to be carefully observed, that no one can be
injurious to his brother without wounding God himself. Were
this doctrine deeply fixed in our minds, we should be much
more reluctant than we are to inflict injuries. Should any one
object, that this divine image has been obliterated, the
solution is easy; first, there yet exists some remnant of it, so
that man is possessed of no small dignity; and secondly, the
Celestial Creator himself, however corrupted man may be,
still keeps in view the end of his original creation; and
according to his example, we ought to consider for what end
he created men, and what excellence he has bestowed upon
them above the rest of living beings."

John Calvin, Commentaries on the First Book of Moses Called Genesis

295-96 (John King trans., Calvin Translation Society 1847) (1554)

(emphasis added). Likewise, the Geneva Bible, which was the "most

popular book in colonial homes,"15 includes a footnote to Genesis 9:6 that

provides: "Therefore to kill man is to deface God's image, and so injury is

not only done to man, but also to God." Genesis 9:6 n.2 (Geneva Bible

1599).

Finally, the doctrine of the sanctity of life is rooted in the Sixth

Commandment: "You shall not murder." Exodus 20:13 (NKJV 1982). See

15Kenneth Graham, Confrontation Stories: Raleigh on the

Mayflower, 3 Ohio St. J. Crim. L. 209, 213-14 (2005).
36
SC-2022-0515; SC-2022-0579

John Eidsmoe, Those Ten Commandments: Why Won't They Just Go

Away? 31 Regent U. L. Rev. 11, 15 (2018) (arguing that the Sixth

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

impact of the Ten Commandments on America generally). Aquinas

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

him." Aquinas, supra, Second Part of the Second Part, Treatise on

Prudence and Justice, Question 64, Art. 6. Likewise, Calvin explained

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

Christian Religion 256 (Henry Beveridge trans., Hendrickson Publishers

2008) (1559). These and many similar writings, creeds, catechisms, and

teachings have informed the American public's view of life as sacred.

In summary, the theologically based view of the sanctity of life

adopted by the People of Alabama encompasses the following: (1) God

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

37
SC-2022-0515; SC-2022-0579

life cannot be wrongfully destroyed without incurring the wrath of a holy

God, who views the destruction of His image as an affront to Himself.

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

effacing his glory.

II. Effect of Constitutional Policy

Having discussed the meaning of the phrase "sanctity of unborn

life," I will briefly explore the legal effect of its inclusion in the Alabama

Constitution as a statement of public policy. Again, I will start with the

text. Section 36.06 provides, in relevant part:

"(a) This state acknowledges, 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.

"(b) This state further acknowledges, declares, and

affirms that it 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."

In 2018, the term "public policy" was a legal term that meant: "The

collective rules, principles, or approaches to problems that affect the

commonwealth or (esp.) promote the general good; specif., principles and

38
SC-2022-0515; SC-2022-0579

standards regarded by the legislature or by the courts as being of

fundamental concern to the state and the whole society." Black's Law

Dictionary 1426 (10th ed. 2014); see also Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 73

(Thomson/West 2012) (noting that ordinary legal meaning governs

instead of common meaning when the law is the subject). Notice that the

dictionary does not just say that "public policy" is something like

"whatever is in the best interests of Alabama," which really is for the

Legislature and not this Court to decide. Instead, it refers to the collective

rules, principles, or approaches to problems or principles and standards.

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

appropriate cases to aid it in its decisions.

When considering a question concerning "public policy," an

Alabama judge is supposed to look to "the Constitution, the statutes, or

definite principles of customary law which have been recognized and

developed by the course of judicial decisions," such as the common law,

but not "some considerations of policy which might properly have weight

with the Legislature if it had occasion to deal with the question." Couch

39
SC-2022-0515; SC-2022-0579

v. Hutchison, 2 Ala. App. 444, 447, 57 So. 75, 76 (1911). Thus, Alabama

precedents confirm that the Judiciary can look to the Constitution,

statutes, and principles of customary law to determine what the public

policy of this state is. It must not, however, usurp the role of the

Legislature by attempting to guess what policy decision the Legislature

might have made if it had considered other factors. That decision must

be left for the Legislature itself.

Now that we know what "public policy" means, we must consider

what effect it has on statutory interpretation. In one of its oldest decisions

considering that question, this Court held: "It is not denied that where

public policy or substantial justice obviously requires it, Courts should

strongly incline to such liberal construction of the statute as will effect

the object." Jones v. Watkins, 1 Stew. 81, 85 (Ala. 1827). However, in

more modern times, this Court has repeatedly emphasized adherence to

the plain language of the statute, and I agree with this approach. See

generally Jay Mitchell, Textualism in Alabama, 74 Ala. L. Rev. 1089,

1100-10 (2023). Consequently, I believe that, ordinarily, this Court may

consider public policy in statutory interpretation only if (1) there is

substantial doubt about the meaning of the statute and (2) the precepts

40
SC-2022-0515; SC-2022-0579

of public policy and jurisprudence to which we look are settled. Ex parte

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

(1925); 82 C.J.S. Statutes § 472 (2009); 73 Am. Jur. 2d Statutes § 91

(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

Sanctity of Unborn Life Amendment would resolve the matter in favor of

the plaintiffs.

But a special problem arises when the People of Alabama enshrine

a specific statement of public policy in their Constitution. Instead of

gleaning bits and pieces of the state's public policy from the Constitution,

statutes, common law, and precedents, the People of Alabama explicitly

told the Legislature, the Executive, and the Judiciary what they are

supposed to do. Ordinarily, we resort to public-policy considerations in

statutory interpretation as a last resort, so that the Judiciary does not

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
SC-2022-0515; SC-2022-0579

(noting that "the power of the people is superior to both" the judicial and

legislative powers). Consequently, as Alexander Hamilton wrote in The

Federalist No. 78, "where the will of the legislature declared in its

statutes, stands in opposition to that of the people declared in the

constitution, the judges ought to be governed by the latter, rather than

the former." Id. Thus, as a constitutional statement of public policy, §

36.06 circumscribes the Legislature's discretion to determine public

policy with regard to unborn life. Accordingly, any legislative (or

executive) act that contravenes the sanctity of unborn life is potentially

subject to a constitutional challenge under the Alabama Constitution.

Putting this all together, § 36.06 does much more than simply

declare a moral value that the People of Alabama like. Instead, this

constitutional provision tilts the scales of the law in favor of protecting

unborn life. Although § 36.06 may not resolve every case involving

unborn life, if reasonable minds could differ on whether a common-law

rule, a statute, or even a constitutional provision protects life, § 36.06

instructs the Alabama government to construe the law in favor of

protecting the unborn. Furthermore, to exclude the unborn from § 36.06's

42
SC-2022-0515; SC-2022-0579

protection, the Legislature would have to do so very clearly and for a

reason that is consistent with upholding the sanctity of life.

Justice Cook argues in his dissent that applying § 36.06 and the

Wrongful Death of a Minor Act to frozen embryos will have disastrous

consequences for the in vitro fertilization ("IVF") industry in Alabama.

Although it is for the Legislature to decide how to address this issue, I

note briefly that many other Westernized countries have adopted IVF

practices or regulations that allow IVF to continue while drastically

reducing the chances of embryos being killed, whether in the creation

process, the implantation process, the freezing process, or by willful

killing when they become inconvenient. For decades, IVF has been

largely unregulated in the United States, with some commentators even

comparing it to the Wild West. See, e.g., Alexander N. Hecht, The Wild

Wild West: Inadequate Regulation of Assisted Reproductive Technology,

1 Hous. J. Health L. & Pol'y 227, 228 (2001) ("Unfortunately, this

industry remains largely unregulated. The near-absence of federal and

state law combined with ineffective and unheeded industry guidelines

leads to a lawless free-for-all." (footnotes omitted)); see also Myrisha S.

Lewis, The American Democratic Deficit in Assisted Reproductive

43
SC-2022-0515; SC-2022-0579

Technology Innovation, 45 Am. J. L. & Med. 130, 144 & n.77 (2019)

(noting that IVF in the United States is still unregulated and that

commentators are still comparing it to the Wild West). In Alabama, the

only statutes that mention IVF address the issue of determining

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

Pub. Health), r. 420-3-26-.02. If the Legislature agrees that it is time to

regulate the IVF industry, then the good news is it need not reinvent the

wheel. Other Westernized countries have given Alabama some examples

to consider.

For instance, in Australia and New Zealand, prevailing ethical

standards dictate that physicians usually make only one embryo at a

time. 16 On the related issue of embryo transfers, which is the process of

16Code of Practice for Assisted Reproductive Technology Units § 3.3,

p. 24, Fertility Society of Australia and New Zealand, Reproductive
Technology Accreditation Committee (2021) (at the time of this decision,
this document could be located at:
44
SC-2022-0515; SC-2022-0579

implanting the embryos into the uterus,17 in Australia and New Zealand

over 90% of embryo transfers occur only one at a time. 18 Likewise,

European Union ("EU") countries set a legal limit on the number of

embryos transferred in a single cycle. 19 In EU countries, 58% of embryo

https://www.fertilitysociety.com.au/wp-content/uploads/20211124-
RTAC-ANZ-COP.pdf.).

17According to the contract that the LePages signed, the number of

embryos transferred to the mother could range from 1-5. LePage Contract
at 9. It appears that the objective of transferring multiple embryos is to
increase the chances of pregnancy. Id. at 8. At least two issues arise from
this practice. First, it results in the mother becoming pregnant with
multiple babies 30% of the time, which can cause health problems for the
mother and babies. See id. at 17. Second, less than half of embryo
transfers result in live births, which raises the question whether
transferring multiple embryos at once risks the deaths of these little
people. See Jennifer Choe & Anthony L. Shanks, In Vitro Fertilization,
NIH National Library of Medicine (last updated Sep. 4, 2023), (at the
time of this decision, this document could be located at:
https://www.ncbi.nlm.nih.gov/books/NBK562266.

18See Choe & Shanks, supra, at n.17; Christine Wyns, Number of

Frozen Treatment Cycles Continues to Rise Throughout the World,
European Society of Human Reproduction and Embryology (June 30,
2021) (at the time of this decision, this document could be located at:
https://www.focusonreproduction.eu/article/ESHRE-News-ESHRE-2021
-freeze-all) (reporting that "Australia/New Zealand leads the way" in the
"number of single embryo transfers" in "more than 90% of cycles").

19Regulation and Legislation in Assisted Reproduction, European

Society of Human Reproduction and Embryology (Jan. 2017) (at the time
of this decision, this document could be located at:
https://tinyurl.com/299cvcbf). Specifically, Austria, Belgium, and Malta
45
SC-2022-0515; SC-2022-0579

transfers involve just one embryo, and 38% involve two; thus, 96% of

embryo transfers in EU countries involve two or fewer transfers at one

time. 20 Such limitations on embryo creation and transfer necessarily

reduce or eliminate the need for storing embryos for extended lengths of

time. Italy went one step further, banning cryopreservation of embryos

except when a bona fide health risk or force majeure prevented the

embryos from being transferred immediately after their creation. 21 All of

these measures protect the lives of the unborn and still allow couples to

become parents. Therefore, although certain changes to the IVF

industry's current creation and handling of embryos in Alabama will

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.

20More Women Are Using Single Embryos During Fertility

Treatment, European Society of Human Reproduction and Embryology
(June 27, 2023) (at the time of this decision, this document could be
located at: https://www.eshre.eu/ESHRE2023/Media/2023-Press-
releases/EIM).

21See Legge 19 Feb. 2004, no. 40 (art. 14, para. 3), in G.U. Feb. 24,
2004, no. 45 (It.).
46
SC-2022-0515; SC-2022-0579

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.

These regulations adopted by other countries seem much more

likely to comport with upholding the sanctity of life than the prevailing

practice of creating and transferring at once many embryos that have

little chance of survival and then throwing embryos away after a while.

The American states, unfortunately, have not followed the example of

other Westernized countries that have regulations that achieve both the

protection of life and the promotion of parenthood. Ultimately, however,

it is for the Legislature to decide how the IVF industry can help parents

have children. The Legislature is free to do so in any way it decides,

provided that it comports with the Alabama Constitution, including the

Sanctity of Unborn Life Amendment. 22

III. Conclusion

In application to these cases, the contentions of the defendants and

their amicus are not sustainable in light of the Sanctity of Unborn Life

22The Legislature should also take note of § 36.06 if it considers

other ethical issues related to reproduction if they arise.
47
SC-2022-0515; SC-2022-0579

Amendment. The People of Alabama have declared the public policy of

this State to be that unborn human life is sacred. We believe that each

human being, from the moment of conception, is made in the image of

God, created by Him to reflect His likeness. It is as if the People of

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

1982). All three branches of government are subject to a constitutional

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

unacceptable to the People of this State, who have required us to treat

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

main opinion, I concur.

48
SC-2022-0515; SC-2022-0579

SHAW, Justice (concurring specially).

I concur fully in the main opinion. I write specially to note the

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

an unborn child with no distinction between in vitro or in utero.

In prior cases determining whether an unborn child is a "minor

child" for purposes of the Wrongful Death Act, this Court has referenced

the definition of a "person" found in § 13A-6-1(3), Ala. Code 1975, which

in turn applies to certain portions of the criminal code. The main opinion

thoroughly explains why this criminal-law definition 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.

I do not believe that any purported prior common-law rule requires

a different result.

"The common law of England, so far as it is not

inconsistent with the Constitution, laws and institutions of
this state, shall, together with such institutions and laws, be
the rule of decisions, and shall continue in force, except as
49
SC-2022-0515; SC-2022-0579

from time to time it may be altered or repealed by the

Legislature."

§ 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

unless altered by the legislature. As one Justice has explained:

"This statute does not provide that 'the common law of

England shall be the rule of decisions in Alabama unless
changed by the legislature.' On the contrary, it provides that
the common law of England shall be the rule of decisions in
this State, so far as the common law is not inconsistent with
the constitution, the laws, and the institutions of Alabama."

Swartz v. United States Steel Corp., 293 Ala. 439, 446-47, 304 So. 2d 881,

887 (1974) (Faulkner, J., concurring specially).

In the context of civil law, the legislature, the constitution, and this

Court's decisions have collectively repealed the common law's prohibition

on wrongful-death actions, § 6-5-391; protected the rights of the unborn,

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

eliminated the common law's prohibition on seeking a civil remedy for

50
SC-2022-0515; SC-2022-0579

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

of this state. Whether such rule is in fact consistent, we can respectfully

disagree. But if it is inconsistent, then it need not be first altered or

repealed by the legislature.

It can scarcely be argued that science is not outdistancing the law

in various areas, especially in the context of human reproduction.

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." §

36.06(b). The people of Alabama, apparently recognizing that

advancements in reproductive science necessarily come with concomitant

responsibilities, have bound all three branches of our state government

51
SC-2022-0515; SC-2022-0579

to this policy, and, in my view, the enactments of the Alabama

Legislature are consistent with it.

Stewart, J., concurs.

52
SC-2022-0515; SC-2022-0579

MENDHEIM, Justice (concurring in the result).

Over the course of time, previous cases from this Court have applied

the protection afforded to a "minor child" in subsection (a) of § 6-5-391,

Ala. Code 1975, the Wrongful Death of a Minor Act, to human lives at

earlier and earlier stages of development. In Stanford v. St. Louis-San

Francisco Railway Co., 214 Ala. 611, 108 So. 566 (1926), this Court,

construing a predecessor to § 6-5-391(a),23 held that a "parental injury

before the birth is no basis for action in damages by the child or its

personal representative." Birmingham Baptist Hosp. v. Branton, 218

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

concluded that the term 'minor child' in the predecessor to § 6-5-391(a)

[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

23Section 5695, Ala. Code 1923.

53
SC-2022-0515; SC-2022-0579

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

and one-half month old stillborn fetus [were] entitled to maintain an

action for the wrongful death of the child." The Court stepped back from

those broader applications of protection in Gentry v. Gilmore, 613 So. 2d

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

Court returned to its understanding of the Wrongful Death of a Minor

Act espoused in Wolfe, holding that "the Wrongful Death [of a Minor] Act

permits an action for the death of a previable fetus." Mack, 79 So. 3d at

611. In Hamilton v. Scott, 97 So. 3d 728, 735 (Ala. 2012), the Court

reaffirmed its conclusion from Mack, stating that "Alabama's wrongful-

death statute allows an action to be brought for the wrongful death of any

unborn child, even when the child dies before reaching viability."

54
SC-2022-0515; SC-2022-0579

The foregoing history of previous decisions concerning the Wrongful

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

"again extending out judicial prerogative as was done in Huskey and

Wolfe …."). Because of that, and because the terms "child" and "minor

child" in § 6-5-391(a) are not further defined in the Wrongful Death of a

Minor Act, I agree with the main opinion that the Act can be construed

to include frozen embryos produced through in vitro fertilization ("IVF").

For those reasons, I concur in the result reached today that reverses the

trial court's dismissal of the plaintiffs' wrongful-death claims.

However, I have misgivings about the reasoning and some of 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

difficult questions," but it insists throughout that applying the protection

of § 6-5-391(a) to frozen embryos is not one of those difficulties because

"existing black-letter law" dictates our answer to the central question. __

55
SC-2022-0515; SC-2022-0579

So. 3d at __. Indeed, the main opinion states that the text of § 6-5-391(a)

is "clear" and that there is no ambiguity as to whether its protection

applies to frozen embryos. __ So. 3d at __.

"Too often, a court's conclusion that statutory language is

'plain' is a substitute for careful analysis. At best, such
unexplained conclusions are based on a judge's gestalt sense
of the best meaning of the words in question. At worst, the
bare insistence that statutory language is 'plain' is cover
(perhaps subconscious) for judicial policymaking."

Carranza v. United States, 267 P.3d 912, 916 (Utah 2011) (opinion of Lee,

J., joined by one other Justice).

In my judgment, the main opinion's view that the legal conclusion

is "clear" and "black-letter law" is problematic because when the

Wrongful Death of a Minor Act was first enacted in 1872, and for 100

years thereafter, IVF was not even a scientific possibility. Likewise,

although it may be true that "the phrase 'minor child' … in everyday

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
SC-2022-0515; SC-2022-0579

enacted -- and long thereafter -- the term "unborn child" was only

understood to refer to a child within its mother's womb. 24 __ So. 3d at __.

The main opinion's contention that "[t]he central question

presented in these consolidated appeals … is whether the [Wrongful

Death of a Minor] Act contains an unwritten exception to th[e] rule" that

the Act "allows parents of a deceased child to recover punitive damages

for their child's death" is similarly simplistic. __ So. 3d at __. The

defendants have never argued for an "exception" to the Wrongful Death

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
SC-2022-0515; SC-2022-0579

of a Minor Act. The main opinion reaches that conclusion by implication

-- simply assuming that the term "minor child" includes frozen embryos

-- a wholesale adoption of the plaintiffs' argument. See Appellants' brief

in appeal no. SC-2022-0515, p. 19 (contending that the "[d]efendants'

arguments … create an exception to existing Alabama law so that not all

embryonic lives are treated equally under the law").

The main opinion then goes on in Part A.2. of its analysis to provide

reasons why this Court's many pronouncements about "congruence"

between Alabama's wrongful-death statutes and its criminal-homicide

statutes25 do not dictate importing the definition of the term "person" in

§ 13A-6-1(a)(3), Ala. Code 1975, into § 6-5-391(a). The reasoning in that

portion of the main opinion also strikes me as strained given the history

behind our wrongful-death statutes.

As this Court has observed numerous times, there was no right of

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

wrongful death action is purely statutory; no such action existed at

25See, e.g., Mack, 79 So. 3d at 611 (observing that "this Court

repeatedly has emphasized the need for congruence between the criminal
law and our civil wrongful-death statutes").
58
SC-2022-0515; SC-2022-0579

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)

("There is no civil liability, under the common law, as interpreted in this

jurisdiction, against one who wrongfully or negligently causes the death

of a human being; and hence no right of action exists under the common

law therefor. The right of action is purely statutory."); Kennedy v. Davis,

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.").

The reasons for the common-law prohibition appear to have been

based on two legal concepts.

"The effect to be given the death of a person connected

with a tort rests almost entirely upon statutory foundations.
The common-law limitations that eventually led to legislative
reform were twofold. First was the rule that personal tort
59
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actions die with the person of either the plaintiff or the

defendant. This limitation is expressed by the maxim, actio
personalis moritur cum persona, which has roots deep in the
early history of English law. The second limitation was that
the death of a human being was not regarded as giving rise to
any cause of action at common law on behalf of a living person
who was injured by reason of the death. This latter is of more
recent origin as a distinct proposition, although it doubtless
rests in part on the same considerations that underlie the
other and older maxim of actio personalis moritur cum
persona."

Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043,

1044 (1965) (footnotes omitted). 26 Our wrongful-death statutes sought to

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

26See also Malone, 17 Stan. L. Rev. at 1055 (explaining that "[t]he

probable origin of the rule denying a cause of action for wrongful death
was the doctrine, since discarded, that when a cause of action disclosed
the commission of a felony the civil action was merged into the criminal
wrong"). Restatement (Second) of Torts § 925, cmt. a. (Am. Law Inst.
1979), also provides a nice summary of the genesis of wrongful-death
statutes.
60
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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,

'Actio personalis moritur cum persona,' the personal representative of a

deceased person could maintain no action for loss or damage resulting

from his death.").

The close connection between Alabama's wrongful-death statutes

and its criminal-homicide statutes was reflected in the first wrongful-

death statute, Act No. 62, Ala. Acts 1871-72, p. 83, which was titled "AN

ACT To prevent homicides," and their shared purpose has been

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

Act and the Homicide Act to prevent homicide"); Ex parte Bio-Med.

Applications, 216 So. 3d at 424 (" '[The wrongful-death] statute

authorizes suit to be brought by the personal representative for a definite

legislative purpose -- to prevent homicide.' " (quoting Hatas v. Partin, 278

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 ...

is to prevent homicide through punishment of the culpable party and the

determination of damages by reference to the quality of the tortious act.

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SC-2022-0515; SC-2022-0579

..."); Huskey, 289 Ala. at 55, 265 So. 2d at 597 ("One of the purposes of

our wrongful death statute is to prevent homicides.") Thus, it seems

logical to me for there to be a correlation between the persons protected

under Alabama's wrongful-death statutes and the persons protected

under Alabama's criminal-homicide statutes.

The main opinion is correct that the protection afforded in a civil

law certainly can be broader than its corollary in criminal law, but

nothing requires the civil law to be read more broadly, particularly given

the absence of legislative action on this subject. 27

27The main opinion asserts that Art. I, § 36.06(b) of the Alabama

Constitution of 2022, in stating that "it 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," "operates in this context as a
constitutionally imposed canon of construction, directing courts to
construe ambiguous statutes in a way that 'protect[s] … the rights of the
unborn child' equally with the rights of born children, whenever such a
construction is 'lawful and appropriate.' " __ So. 3d at __. The main
opinion offers no authority for taking § 36.06 as a canon of legal
construction, and I am not sure what an "appropriate" construction of the
law means.

More generally, it is unclear to me why a constitutional amendment

that was adopted in 2018 is somehow so central to deciding the specific
meaning of a statute that has substantively remained unchanged since
1872. In any event, " '[t]o declare what the law is, or has been, is a judicial
power; to declare what the law shall be, is legislative.' " Lindsay v. United
States Sav. & Loan Ass'n, 120 Ala. 156, 168, 24 So. 171, 174 (1898)
(quoting Thomas Cooley, Constitutional Limitations 114).
62
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Moreover, I find it interesting that the Human Life Protection Act,

§ 26-23H-1 et seq., Ala. Code 1975, which was enacted in 2019 -- well

after the Brody Act, which amended § 13A-6-1 of our criminal-homicide

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

including an unborn child in utero at any stage of development,

regardless of viability." § 26-23H-3(7), Ala. Code 1975. In its amicus

curiae brief, the Alabama Medical Association states:

"[D]uring the debate on the Alabama Senate floor regarding

the Human Life Protection Act, Senator Clyde Chambliss, the
Bill's sponsor in the Alabama Senate, confirmed that the 'in
utero' language in the Act was intentional, since it was not
the intent of the Legislature through this Act to impact or
prevent the destruction of fertilized in vitro eggs because in
those circumstances, the woman is not pregnant. Likewise,
Eric Johnston, president of the Alabama Pro-Life Coalition
and one of the individuals who helped draft the Human Life
Protection bill, stated in an interview with the Washington
Post that the Bill would 'absolutely not' impact in vitro
fertilization. Mr. Johnston gave this statement in response to
the ACLU's misguided suggestion that the Act might affect in
vitro fertilization."

Alabama Medical Association's brief, pp. 30-31 (footnotes omitted). I fully

realize that such legislative history is not persuasive for purposes of

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statutory interpretation, but that history should give us pause regarding

any kind of expansive interpretation of the Brody Act.

I also take issue with a hypothetical employed by the main opinion

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

the 14th Amendment to the United States Constitution to [IVF]

children," __ So. 3d at __, the main opinion nonetheless proceeds to share

-- and implicitly agree with -- a hypothetical posited by the plaintiffs that

purports to implicate the Equal Protection Clause of the 14th

Amendment. 28 The main opinion asserts that "one latent implication" of

the defendants' interpretation of § 6-5-391(a) is that

"even a full-term infant or toddler conceived through IVF and

gestated to term in an in vitro environment would not qualify
as a 'child' or 'person,' because such a child would both be (1)
'unborn' (having never been delivered from a biological womb)
and (2) not 'in utero.' And if such children were not legal

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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'children' or 'persons,' then their lives would be unprotected

by Alabama law."

__ So. 3d at __ (footnote omitted).

First, in mentioning the foregoing hypothetical, the main opinion

ignores the fact that it is not now -- or for the foreseeable future --

scientifically possible to develop a child in an artificial womb so that such

a scenario could somehow unfold. 29 Second, the main opinion's choice to

29Perhaps in anticipation of that objection, the main opinion inserts

a footnote that selectively quotes from a couple of journal articles to make
it seem as if the time when artificial wombs for the earliest stages of
human life are a reality is just around the corner. See __ So. 3d at __ n.2.
That is simply untrue. See, e.g., Jen Christensen, FDA Advisers Discuss
Future of 'Artificial Womb' for Human Infants, CNN, Sept. 19, 2023 (at
the time of this decision, this article could be located at:
https://www.cnn.com/2023/09/19/health/artificial-womb-human-trial-
fda/index.html) (reporting that "[a] handful of scientists have been
experimenting with animals and artificial wombs," but that "no such
device has been tested in humans," and that, in any event, "[a]n artificial
womb is not designed to replace a pregnant person; it could not be used
from conception until birth. Rather, it could be used to help a small
number of infants born before 28 weeks of pregnancy, which is considered
extreme prematurity."); Stephen Wilkinson et al., Artificial Wombs
Could Someday be a Reality, The Conversation, Dec. 1, 2023 (at the time
of this decision, this article could be located at:
https://theconversation.com/artificial-wombs-could-someday-be-a-
reality-heres-how-they-may-change-our-notions-of-parenthood-217490)
(observing that even an artificial womb for premature babies "may be
many decades away" but that "artificial womb technologies could
eventually lead to 'full ectogenesis' -- growing a foetus from conception to
'birth' wholly outside the human body" (emphasis added)).

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include that emotionally charged hypothetical undermines its earlier

observation that "[a]ll parties to these cases, like all members of this

Court, agree that an unborn child is a genetically unique human being

whose life began at fertilization and ends at death."30 __ So. 3d at __. No

30I note that although I certainly agree with the above-quoted

statement from the main opinion, even that observation is not as simple
as it appears because of the terms involved.

"Notwithstanding various legislative pronouncements, from a

medical and scientific perspective, fertilization is currently
considered to be a chaotic and multi-step process, whereas
'conception' has variously been described as the time frame
between fertilization and implantation in a woman's uterus,
or the process of implantation. Precisely how long an in vitro
growing cell mass is considered an embryo versus a pre-
embryo, or whether the latter term is a legitimate distinction
has long been the subject of debate among scientists as well
as legal and ethical scholars."

Susan L. Crockin & Gary A. Debele, Ethical Issues in Assisted

Reproduction: A Primer for Family Law Attorneys, 27 J. Am. Acad.
Matrim. Law. 289, 299 (2015). See also McQueen v. Gadberry, 507
S.W.3d 127, 134 n.4 (Mo. Ct. App. 2016) (observing that " ' "Pre-embryo"
is a medically accurate term for a zygote or fertilized egg that has not
been implanted in a uterus. It refers to the approximately 14-day period
of development from fertilization to the time when the embryo implants
in the uterine wall and the "primitive streak," the precursor to the
nervous system, appears. An embryo proper develops only after
implantation. The term "frozen embryos" is a term of art denoting
cryogenically preserved pre-embryos.' " (quoting Elizabeth A. Trainor,
Annotation, Right of Husband, Wife, or Other Party to Custody of Frozen
66
SC-2022-0515; SC-2022-0579

one -- not Mobile Infirmary Association, the Center for Reproductive

Medicine, the amicus Alabama Medical Association, my dissenting

colleagues, or anyone who disagrees with today's Court's decision -- is

suggesting that such a child, if he or she could be produced, should not

be protected by Alabama law.

Ultimately, as I stated at the outset, we must be guided by the

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

result is correct. However, the decision undoubtedly will come as a shock

in some quarters of the State. I urge the Legislature to provide more

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

Embryo, Pre-embryo, or Pre-zygote in Event of Divorce, Death, or Other

Circumstances, 87 A.L.R. 5th 253, 260 (2001))).

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.
67
SC-2022-0515; SC-2022-0579

Rev. 515, 516 (2018) (observing that, "[u]nfortunately, American courts

have not kept pace with the advancements happening in the field of ART
[assisted reproductive technology]" and that, "[m]ost often, frozen embryo
cases come to the courts during divorce suits between progenitors. Due
to the personal nature of ART, however, progenitors are less likely to seek
legal recourse when frozen embryos are negligently destroyed and the
harm caused by the clinic is shielded from the public eye. While suits
regarding negligent destruction of frozen embryos and suits when
progenitors stop paying storage fees are less common, they are not
without their legal and societal implications. When couples do turn to the
judicial system, the courts are often ill-equipped to answer such legal
questions in a manner that also considers the unique nature of ART and
the accompanying emotions of the progenitors." (footnotes omitted));
Shirley Darby Howell, The Frozen Embryo: Scholarly Theories, Case
Law, and Proposed State Regulation, 14 DePaul J. Health Care L. 407,
407 (2013) (explaining that "[u]sing IVF to assist individuals and couples
having trouble procreating would be seemingly positive, but the
procedure has resulted in serious unintended consequences that continue
to trouble theologians, physicians, and the courts. The ongoing legal
debate focuses on two principal questions: (1) whether a frozen embryo
should be regarded as a person, property, or something else and, (2) how
to best resolve disputes between gamete donors concerning disposition of
surplus frozen embryos."); Maggie Davis, Indefinite Freeze?: The
Obligations A Cryopreservation Bank Has to Abandoned Frozen
Embryos in the Wake of the Maryland Stem Cell Research Act of 2006,
15 J. Health Care L. & Pol'y 379, 396-97 (2012) (asserting that
"[c]ryopreservation is a scarce good, and is incredibly costly. For instance,
one California cryopreservation bank charged clients $375 a year,
prepaid, to store embryos. After many years, this can become incredibly
burdensome on the progenitors. When the fees become too burdensome,
there is a higher chance for couples to stop paying their fees, and
eventually fall out of contact with the clinic. As embryos are abandoned,
and storage fees are not paid, cryopreservation banks will likely need to
raise the costs of the fees to other customers in order to compensate."
(footnotes omitted)); Beth E. Roxland & Arthur Caplan, Should
Unclaimed Frozen Embryos Be Considered Abandoned Property and
Donated to Stem Cell Research?, 21 B.U. J. Sci. & Tech. L. 108, 109 (2015)
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regulation of the entire IVF industry. 32 Ultimately, it is the Legislature

that possesses the constitutional authority and responsibility to be the

final arbiter concerning whether a frozen embryo is protected by the laws

of this State. Without such guidance, I fear that there could be

unfortunate consequences stemming from today's decision that no one

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))).

32See, e.g., Valerie A. Mock, Getting the Cold Shoulder:

Determining the Legal Status of Abandoned IVF Embryos and the
Subsequent Unfair Obligations of IVF Clinics in North Carolina, 52
Wake Forest L. Rev. 241, 257 (2017) (observing that "IVF centers are
largely a self-regulated industry, meaning that for better or for worse,
they receive little governmental oversight. There are no federal
regulations for the disposition of abandoned embryos, and very few states
have addressed it legislatively." (footnotes omitted)); Roxland & Caplan,
21 B.U. J. Sci. & Tech. L. at 115 (noting that "[n]o federal statutory law
or regulation generally governs the classification of frozen embryos. In
fact, only three states have enacted legislation concerning the disposition
of frozen embryos more generally: Louisiana, Florida, and New
Hampshire." (footnotes omitted)).
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SELLERS, Justice (concurring in the result in part and dissenting in

part).

These cases are not about when life begins, nuances of statutory

construction, or the definition of "minor child" or "person." And, contrary

to the main opinion, there is no black-letter law in Alabama, or any other

state, to help us. 33 Regrettably, these cases use the specter of destroying

human life to craft a narrative involving the protection of unborn children

to cynically inflame worries about the sanctity of life under Alabama law.

In reality, these cases concern nothing more than an attempt to

design a method of obtaining punitive damages under Alabama's

Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, by concluding

that frozen embryos, negligently destroyed, are entitled to the same

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

(which is a part of Alabama's criminal-homicide statutes), and employing

any sequence of linguistic gymnastics, cannot yield the conclusion that

embryos developed through in vitro fertilization were intended by the

legislature to be included in the definition of "person," see § 13A-6-

33Otherwise, the duration of oral argument would not have

approached two hours.
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SC-2022-0515; SC-2022-0579

1(a)(3), much less the definition of "minor child," see § 6-5-391(a). It is

clear from the four corners of the Brody Act that the legislative intent

was to protect unborn life, regardless of viability, from violence

perpetrated against the mother. Previously, to impose criminal sanctions

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,'

when referring to the victim of a criminal homicide, means a human

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

that, if a woman is pregnant, an embryo in utero receives all the

protections that a viable life would be afforded under the laws of

Alabama. See § 13A-6-1(a)(3). Thus, and in light of Justice Houston's

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

civil wrongful-death statutes," Mack v. Carmack, 79 So. 3d 597, 611 (Ala.

71
SC-2022-0515; SC-2022-0579

2011), this Court held "that the Wrongful Death [of a Minor] Act permits

an action for the death of a previable fetus." Id.

But interpreting the Brody Act as we are asked to do here is a

judgment call. In short, we must determine whether to constrain

ourselves to the clear intent of the Act or whether to inform our

interpretation using extraneous means to reach a result clearly contrary

to anything the Act ever intended. The majority's conclusion that an

action may be maintained under the Wrongful Death of a Minor Act for

the negligent destruction of an in vitro embryo -- an atextual conclusion

purportedly reached by utilizing the Brody Act's definition of "person" to

inform the Wrongful Death of a Minor Act's definition of "minor child" -- is

clearly contrary to the intent of the legislature. To equate an embryo

stored in a specialized freezer with a fetus inside of a mother is engaging

in an exercise of result-oriented, intellectual sophistry, which I am

unwilling to entertain.

Furthermore, I am puzzled by the majority and concurring opinions'

references to Article I, § 36.06, of the Alabama Constitution of 2022. We

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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SC-2022-0515; SC-2022-0579

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

it opines in dicta, without any citation to authority, that if the word

"child" were ambiguous, § 36.06 acts "as a constitutionally imposed canon

of construction, directing courts to construe ambiguous statutes in a way

that 'protect[s] ... the rights of the unborn child' equally with the rights

of born children." __ So. 3d at __. Respectfully, § 36.06 neither operates

in such a fashion nor commands this Court to override legislative acts it

believes "contraven[e] the sanctity of unborn life." __ So. 3d at __ (Parker,

C.J., concurring specially). Section 36.06 states, in relevant part, "that it

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."

§ 36.06(b). Because all policy determinations are vested in our

legislature, this includes those determinations regarding the sanctity of

unborn life. Therefore, § 36.06 merely reaffirms that "the judicial branch

may not exercise the legislative or executive power." Art. III, § 42(c), Ala.

Const. 2022. Accordingly, this Court has no authority to determine

whether legislation concerning or relating to unborn life defies § 36.06;

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that authority lies only with the People of this State, acting through their

elected representatives.

Any public-policy ramifications of any decision in these cases are

outside the purview of this Court, and they are more appropriately

reserved for the legislature. Should the legislature wish to include in

vitro embryos in the definition of "minor child," it may easily do so.

Absent any specific legislative directive, however, we should not read

more into a legislative act than the legislature did so itself. Thus, as to

the majority opinion's conclusion regarding the Wrongful Death of a

Minor Act, I respectfully dissent.

Insofar as the majority opinion affirms the trial court's dismissal of

the plaintiffs' negligence and wantonness claims, I concur in the result. I

must necessarily disagree with the majority opinion's mootness rationale

on account of my dissent as to the majority opinion's analysis and

conclusion regarding the Wrongful Death of a Minor Act.

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COOK, Justice (dissenting).

I respectfully dissent. The first question that this Court is being

asked to decide in these appeals is whether Alabama's Wrongful Death

of a Minor Act ("the Wrongful Death Act"), see § 6-5-391, Ala. Code 1975,

as passed by our Legislature, provides a civil cause of action for money

damages for the loss of frozen embryos. This is a question of the meaning

of the words in that Act, as it was originally passed and understood in

1872.

My sympathy with the plaintiffs and my deeply held personal views

on the sanctity of life cannot change the meaning of words enacted by our

elected Legislature in 1872. Even when the facts of a case concern

profoundly difficult moral questions, our Court must stay within the

bounds of our judicial role.

Limiting our role to interpreting the existing words in a statute and

letting the Legislature decide changes is one of the basic teachings of the

United States Supreme Court's recent decision in Dobbs v. Jackson

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

75
SC-2022-0515; SC-2022-0579

in each state, so that their elected representatives could pass laws

addressing that issue. In concluding that the authority to regulate

abortion "must be returned to the people and their elected

representatives," the Supreme Court in Dobbs explained that "respect for

a legislature's judgment applies even when the laws at issue concern

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

judgment of legislative bodies.' " Id. at 289 (quoting Ferguson v. Skrupa,

372 U.S. 726, 729-30 (1963)).

Over the years, our Court has repeatedly said the same thing.

Specifically, our Court has made clear that we are "not at liberty to

rewrite statutes or to substitute [our] judgment for that of the

Legislature." Ex parte Carlton, 867 So. 2d 332, 338 (Ala. 2003). Further,

our Court has repeatedly made clear that "public-policy arguments

should be directed to the legislature, not to this Court." Ex parte Ankrom,

152 So. 3d 397, 420 (Ala. 2013) (emphasis added).

Statutes Do Not Evolve. The Legislature Amends Them.

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SC-2022-0515; SC-2022-0579

On rare occasions, our Court's decisions have included language

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

the ends of justice." This is both dicta and fundamentally wrong.

It is not our role to expand the reach of a statute and "breathe life"

into it by updating or amending it. It is also not our role to consider

whether a law has become "stale" or "shelfworn." 34 This is the same error

made by those commentators who advocate for a living constitution and

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))).

35See generally Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 403-10 (Thomson/West 2012); Joe
Carter, Justice Scalia Explains Why the "Living Constitution" is a Threat
to America, Action Inst. (May 14, 2018) (at the time of this decision, this
77
SC-2022-0515; SC-2022-0579

Instead, it is the role of the Legislature to determine whether a law

is outdated (for instance, because of new technology) and, thus, requires

updating. If our Court does "breathe life" into a law by expanding its

reach, we short-circuit the legislative process and violate the Alabama

Constitution's separation-of-powers clause. That clause provides that,

"[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

doctrine of separation of powers." DeKalb Cnty. LP Gas Co. v. Suburban

Gas, Inc., 729 So. 2d 270, 276 (Ala. 1998).

Separation of powers is part of our Constitution for a reason -- there

are real advantages to the Legislature -- and not this Court -- making

such decisions. See Jay Mitchell, Textualism in Alabama, 74 Ala. L. Rev.

1089, 1097 (2023) (explaining that "[t]here is a reason that the people

elected legislators to formulate public policy, and there is every reason to

article could be located at: https://rlo.acton.org/archives/101616-justice-

scalia-explains-why-the-living-constitution-is-a-threat-to-america.html).
78
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think they are better at it and better situated to be accountable for their

choices than judges are" (emphasis in original)). In fact, the drafters of

the Alabama Constitution felt the separation-of-powers principle was so

important that they made it an express clause in our Constitution,

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

suited to weigh competing interests and write comprehensive legislation,

after full input from the public and thorough study.

Why I Dissent

I dissent because the main opinion violates this fundamental

principle -- that is, that the legislative branch and not the judicial branch

updates laws -- by expanding the meaning of the Wrongful Death Act

beyond what it meant in 1872 without an amendment by the Legislature.

I also dissent because I believe the main opinion overrules our recent

Wrongful Death Act caselaw that requires "congruence" between the

definition of "person" in Alabama's criminal-homicide statutes and the

36Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham,

912 So. 2d 204, 212 (Ala. 2005) (explaining that "[t]he Constitution of
Alabama expressly adopts the doctrine of separation of powers that is
only implicit in the Constitution of the United States").
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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.

Moreover, there are other significant reasons to be concerned about

the main opinion's holding. No court -- anywhere in the country -- has

reached the conclusion the main opinion reaches. And, the main opinion's

holding almost certainly ends the creation of frozen embryos through in

vitro fertilization ("IVF") in Alabama. The plaintiffs themselves

explained in oral argument:

"But today we're here advocating on behalf of plaintiffs who

are supporters of in vitro fertilization. It worked for them.
They have two beautiful children in each family because of in
vitro fertilization. The notion that they would do anything to
hinder or impair the right or access to IVF therapy is flat
wrong. That's not why we're here."

Supreme Court of Alabama, Supreme Court O/A Mobile Alabama,

YouTube 19:14 (Sep. 21, 2023) (at the time of this decision, this oral-

argument session could be located at: https://www.youtube.com/watch?v

=L08KGhNSDME) (emphasis added). It is not my role to judge whether

ending this medical procedure is good or bad -- but it doubtless will have

a huge impact on many Alabamians. And it underscores the need to have

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the Legislature -- not this Court -- address these issues through the

legislative process.

In addition to the reasons stated above, I also dissent because the

main opinion does not reach the second question presented in these

appeals -- that is, whether the trial court prematurely dismissed the

plaintiffs' negligence and wantonness claims at the pleading stage.

Those claims present an alternative pathway to protect frozen embryos,

a pathway without many of the problems presented by the Wrongful

Death Act claims.

There is no dispute in these cases about when life begins. All

parties agree on that issue. I specifically asked the defendants at oral

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

the issue today is whether an embryo is a child protected under the

[Wrongful Death Act]." Supreme Court of Alabama, Supreme Court O/A

Mobile Alabama, YouTube 1:17:49 (Sep. 21, 2023).

The defendants nevertheless present a "catch-22" argument in

support of the dismissal of those claims. On the one hand, they allege

that the plaintiffs' wrongful-death claims were properly dismissed

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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

properly dismissed the plaintiffs' negligence and wantonness claims

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.

However, as explained below, there is no need for this Court to

reach this "catch-22" argument at this time because it is simply too soon

to dismiss those claims under Alabama's liberal pleading rules. It is for

this reason that I would reverse the trial court's dismissal of the

plaintiffs' negligence and wantonness claims.

I. The Plaintiffs' Wrongful-Death Claims

A. The Wrongful Death Act -- A Purely Statutory Claim

This Court has previously observed that wrongful-death actions

"are purely statutory," meaning "[t]here was no such action or right of

action at common law." Kennedy v. Davis, 171 Ala. 609, 611-12, 55 So.

104, 104 (1911) (emphasis added). The Alabama Legislature, therefore,

has the responsibility of declaring who is covered by this private right of

action.

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The Legislature originally passed the Wrongful Death Act in 1872,

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

death of a minor child is caused by the wrongful act, omission, or

negligence of any person, … the father, or the mother, ... of the minor

may commence an action." § 6-5-391(a) (emphasis added).

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

is caused by the wrongful act … of any person" has remained unchanged

from the Act's initial inception in 1872, and no change has ever been

made to it bearing on the meaning of the term "minor child."

B. We Should Use the Original Public Meaning of the Wrongful Death

Act's Words

With no definition of "minor child" having been provided by the

Legislature, this Court must decide how to interpret the meaning of that

term as used in the Wrongful Death Act. I believe in originalism, which

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,

I apply the "original public meaning" of the words. As Justice Mitchell

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has observed, "the meaning of a law is its original public meaning, not its

modern meaning." Mitchell, supra, at 1092 (some emphasis added; some

emphasis in original); see also Barnett v. Jones, 338 So. 3d 757, 768 (Ala.

2021) (Mitchell, J., concurring specially); Ex parte Pinkard, 373 So. 3d

192, 207 (Ala. 2022) (Mitchell, J., concurring specially); Gulf Shores City

Bd. of Educ. v. Mackey, [Ms. 1210353, Dec. 22, 2022] __ So. 3d __, __ (Ala.

2022) (Mitchell, J., concurring in part and concurring in the result). 37

One of the leading scholars on this approach has undoubtedly been

Justice Antonin Scalia. In Reading Law: The Interpretation of Legal

Texts 33 (Thomson/West 2012), Justice Scalia and Bryan A. Garner

explain that when a court is required to interpret the words in a statute,

it should consider "how a reasonable reader, fully competent in the

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-

37See also Mitchell, supra, at 1103 (explaining that "[w]hen judges

say words should be given their 'ordinary' meaning, we do not mean that
each word in a text always takes its literal meaning or its most
statistically common meaning. We mean instead that words must be
given the meaning that an ordinary reasonable person would ascribe to
them after reading them in context.").

38As Justice Mitchell notes in Textualism in Alabama, supra, "[o]ur

court, along with the U.S. Supreme Court and courts within the United
84
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meaning canon" and as the "original public meaning" of a statute); New

Prime Inc. v. Oliveira, 586 U.S. ____, ____, 139 S. Ct. 532, 539 (2019)

(noting that " '[i]t's a "fundamental canon of statutory construction" that

words generally should be "interpreted as taking their ordinary ...

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.

311, 62 L. Ed. 2d 199 (1979))."). 39

Because "[w]ords change meaning over time, and often in

unpredictable ways," Justice Scalia and Garner explain that it is

important to give words in statutes the meaning they had when they

were adopted to avoid changing what the law is. Scalia & Garner, supra,

at 78 (emphasis added). "By anchoring the meaning of a text to the

objective indication of its words at a fixed point in time, … a judges'

States Court of Appeals for the Eleventh Circuit, has cited Reading Law
numerous times." 74 Ala. L. Rev. at 1107.

39Consistentwith applying original public meaning, this Court has

explained that "'[t]he court knows nothing of the intention of an act,
except from the words in which it i s expressed, applied to the facts
existing at the time, the meaning of the law being the law itself.'"
Maxwell v. State, 89 Ala. 150, 161, 7 So. 824, 827 (1890) (citation
omitted).
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abilities to 'update' laws as they go along" is constrained. Mitchell, supra,

at 1096.

Again, because this Court is in the judicial branch, its role is

limited, and applying the "original public meaning" of the words in a

statute helps this Court to stay within its constitutional role, which is a

fundamental part of democracy. See Scalia & Garner, supra, at 82-83

(recognizing that "[o]riginalism is the only approach to text that is

compatible with democracy. When government-adopted texts are given

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

branches of government -- elected legislators and … elected executive

officials and their delegates."). After all, if judges could freely invest old

statutory terms with new meanings, this Court would risk amending

legislation outside the "single, finely wrought and exhaustively

considered, procedure" the Constitution commands. Immigration and

Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1953).

1. The Original Public Meaning of "Minor Child" Can Be Found in

the Common Law -- "The authorities … are unanimous."

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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reach a frozen embryo today. In Alabama, it is a well-settled principle of

law that the common law governs unless expressly changed by the

statutes passed by our Legislature. Our Court has repeatedly held that

"'[a]ll statutes are construed in reference to the principles of the common

law; and it is not to be presumed that there is an intention to modify, or

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.

2013) (observing that " 'statutes [in derogation or modification of the

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.

1977) (emphasis added)). 40

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

remains in effect absent actual changes by the Legislature. See § 1-3-1,

Ala. Code 1975 ("The common law of England, so far as it is not

inconsistent with the Constitution, laws and institutions of this state,

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

or repealed by the Legislature." (emphasis added)).

Similarly, Justice Mitchell has previously recognized that "[a]

statute that uses a common-law term, without defining it, adopts its

common-law meaning." Mitchell, supra, at 1130 (emphasis added).

Other authorities agree that we must "presume the legislature retained

the common-law meaning." 3A Norman J. Singer and J.D. Shambie

Singer, Statutes and Statutory Construction § 69:9 (7th ed. 2010) (quoted

approvingly by Mitchell, supra, at 1130).

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

capable of being killed for the purpose of civil liability or criminal-

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

jurisdictions, this Court in Stanford v. St. Louis-San Francisco Railway

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

resulted in the death of the fetus.

In support of that holding, our Court wrote:

" '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:

"The authorities, however, are unanimous in holding that a prenatal

injury affords no basis for an action in damages, in favor either of the

child or its personal representative." 214 Ala. at 612, 108 So. at 566

(emphasis added).

For many years afterwards, this Court maintained this position.

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

child to be born. It is concurrent with separate existence of the mother

and child by the birth; and parental injury before the birth is no basis for

action in damages by the child or its personal representative."); Snow v.

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

by the mother in a proper case").

Thus, the common law in Alabama before 1872, and for 100 years

afterward, was clear: " 'The doctrine of the civil law … that an unborn

child may be regarded as in esse … is a mere legal fiction, which … has

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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

2. The Main Opinion's Responses to the Common-Law are Mistaken

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

of being killed for the purpose of civil liability or criminal-homicide

liability: (1) that the common-law homicide rule was merely an

"evidentiary rule," (2) that a dictionary from the 1800s includes a

definition of "child" that did not provide an "exception" for unborn

infants, (3) that William Blackstone (among other things) "grouped" the

"rights" of unborn children with the "Rights of Persons," and (4) that the

defendants' argument seeks an "exception" to the definition of "minor

child" for frozen embryos. Each of these arguments is mistaken. I will

address them one at a time.

First, the main opinion notes that "[i]t is true, as Justice Cook

41Again, we must follow the original public meaning of the statute,

even if we might believe that the meaning is ill-informed, unwise, or
outdated. If a meaning of a statute is, in fact, ill-informed, unwise, or
outdated, the Legislature -- not this Court -- must amend or update that
statute.
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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."

____ 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

than … a substantive limitation on personhood." Id.42

The main opinion cites no Alabama authority in support of its

"evidentiary rule" argument. The only authority cited is a law-review

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.

Regardless, this assertion is directly contrary to our Court's

repeated holdings that there should be "congruence" between the
Wrongful Death Act and Alabama's criminal-homicide statutes (as
discussed more fully below). See Mack, 79 So. 3d at 611. Even if it were
not, this argument is nevertheless irrelevant given that the common-law
rule in the civil-law context in Alabama was the same rule as the
criminal-law rule. See, e.g., Stanford, 214 Ala. at 612, 108 So. at 566.

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),

citing in turn Clarke D. Forsythe, Homicide of the Unborn Child: The

Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563,

586 (1987)).

Regardless, the main opinion is mistaken. Our caselaw makes clear

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

(concluding that a wrongful-death action for an unborn child "'will not

lie'" (citation omitted; emphasis added)); Clarke v. State, 117 Ala. 1, 8,

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

43Although the main opinion cites to Dobbs in an apparent effort to

support these two law-review articles, Dobbs did not hold, or even
suggest, that this common-law rule was merely an evidentiary rule and
not a substantive rule of law. Instead, as noted above, the page in Dobbs
cited by the main opinion contains a discussion of a debate over the
possible "basis" for the "quickening rule." Dobbs, 597 U.S. at 247.
Moreover, Dobbs concluded that even the debate over the "basis" of the
"quickening rule" was "of little importance." Id. In the present appeals,
the "basis" for the common-law rule that an unborn infant could not be
killed is not at issue. Even if we were to assume that the "basis" for this
common-law rule was unwise, it was still the rule in effect at the time
the Wrongful Death Act was passed and therefore is part of the original
public meaning of that Act unless the Legislature amends it.
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be killed within the description of murder ….' " (quoting 3 Russell on

Crimes (6th ed.)) (emphasis added)). The main opinion does not cite or

distinguish either of these Alabama cases. Nor would it matter if it was

an "evidentiary rule" because even an evidentiary rule would still

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

main opinion also cites no caselaw holding that an "evidentiary rule"

(even if one applied here) should be ignored in determining the original

public meaning. Further, even if the common law were a mere

evidentiary rule (and it was not), it would be an irrebuttable evidentiary

rule as clearly shown by the cases and language cited above.

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

at ____ (citing Noah Webster et al., An American Dictionary of the

English Language 198 (1864) (quoting the first listed definition).

However, this Court cannot ascertain the meaning of disputed terms

merely by "plugging a string of words into a dictionary and running with

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

the time when they cease ordinarily to be so called, is not defined by

custom." Webster, supra, at 198. (emphasis added).44 "From their birth"

44The main opinion argues in a footnote that the language in the

first definition of "child" merely "contrasts newborns with older children
in order to make the point that there is no clear-cut time at which a young
person transitions from childhood to adulthood." ____ So. 3d at ____ n.5.
But this is not the plain meaning of the language in the definition of
"child": "[t]he term is applied to infants from their birth." Webster, supra,
at 198. And, our Court is not in a position to speculate about what the
subjective intent of the author of an 1864 dictionary might have been --
that is, whether this plain language was included merely "in order to
make the point." See Scalia & Garner, supra, at 30 ("Subjective intent is
beside the point. … Objective meaning is what we are after ….").

In that same footnote (and in a parenthetical in the text of the main

opinion), the main opinion also quotes the last line of the definition in
this dictionary (line 41 -- under the seventh definition). ____ So. 3d at
____ n.5. However, this quotation is simply an illustration. Webster,
supra, at 198 ("To be with child, to be pregnant"). Again, this illustration
does not contradict the common law or Alabama law of the time. In fact,
to the extent that this illustration could mean anything in these appeals,
it would tend to show that a frozen embryo outside of a mother would not
have been part of the public meaning of "minor child" in 1872 because
there would be no mother who was "pregnant."
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means after they were born.

Further, the language quoted in the text of the main opinion is

general in nature ("immediate progeny of parents") and thus fails to

answer the question whether a frozen embryo is a "minor child" as that

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

not include an unborn infant (or a frozen embryo).

In the same vein, the main opinion cites Blackstone's

Commentaries and argues (1) that it "expressly grouped the rights of

unborn children" with the "'Rights of Persons,'" (2) "consistently

described unborn children as 'infant[s]' or 'child[ren],'" and (3) spoke of

"such children as sharing in the same right to life that is 'inherent by

nature in every individual.'" ____ So. 3d at ____ (quoting 1 William

Finally, the main opinion argues that the definition of a different

word --"childbearing" -- "drives home the point" when it "describes
'childbearing' as the act of 'bearing children' in the womb." Id. However,
the definition is far less clear. Instead it states that "childbearing" is
"[t]he act of producing or bringing forth children; parturition."

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Blackstone's Commentaries on the Laws of England *125-26). The main

opinion's characterization of these principles in Blackstone's

Commentaries is mistaken.

First, none of this contradicts the Alabama caselaw cited above. In

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

"grouped" seems insignificant at best, and the main opinion provides no

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.

Finally, the main opinion incorrectly characterizes the defendants'

argument as seeking an exception to the definition of "minor child." The

very beginning of the main opinion argues:

"This Court has long held that unborn children are

'children' for purposes of Alabama's Wrongful Death of a
Minor Act …. The central question presented … is whether
the Act contains an unwritten exception to that rule for
extrauterine children -- that is, unborn children who are
located outside of a biological uterus at the time they are
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killed."

____ So. 3d at ____ (emphasis added).

In making this assertion, the main opinion assumes the answer to

the relevant question -- i.e., whether a "frozen embryo" is a "minor child"

as that term was understood in 1872 in the Wrongful Death Act -- by

immediately labeling frozen embryos as "extrauterine children" and

deeming them "unborn children." In other words, the main opinion

assumes that a frozen embryo is a "child" without further context or

analysis and does so in the second sentence of the opinion.

The main opinion then asks an irrelevant question -- "whether the

Act contains an unwritten exception" for "extrauterine children." ____ So.

3d at ____ (emphasis added). No party has suggested or requested an

"exception" to anything in these appeals. Assuming the answer to the

question and then framing this debate as whether an "exception" exists

is semantics. It does not provide an answer to the relevant question and

does nothing to respond to the common-law rule.

In short, the common-law rule as stated by our Court in Stanford is

the original public meaning of the term "minor child" as it was

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

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'" (citation omitted)). And, our Court has made clear that " 'statutes

[in derogation or modification of the common law] are presumed not to

alter the common law in any way not expressly declared.' " Ex parte

Christopher, 145 So. 3d at 65 (citation omitted). Thus, any update to the

Wrongful Death Act must be done by the Legislature and not this Court.

C. Prior Caselaw Interpreting and Applying the Wrongful Death Act

Based on Congruence with Alabama's Criminal-Homicide Statutes and
Action by the Legislature

What about this Court's more recent caselaw interpreting the

Wrongful Death Act? Although the members of this Court believe in

originalism and textualism, we should not ignore our prior caselaw

unless we are willing to overrule it. After the cases cited above, the next

time we tackled these issues was in 1972 when we decided Huskey v.

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.

Why did we partially overrule Stanford in Huskey? One key reason

was our Court's recognition that the purpose and reach of the Wrongful

Death Act was tied to the State's criminal-homicide statutes:

"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,

in Lollar v. Tankersley, 613 So. 2d 1249, 1252-53 (Ala. 1993), we

explained that, "[w]ithout a clearer expression of legislative intent," we

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

a clear legislative directive, recognized a cause of action for the wrongful

death of a fetus that has never attained a state of development exceeding

that attained in this case." Then, in Gentry v. Gilmore, 613 So. 2d 1241,

1244 (Ala. 1993), we repeated this sentiment and explained:

"We follow the reasoning of a majority of jurisdictions and

hold that our statute provides no cause of action for the
wrongful death of a nonviable fetus. In so holding, we point
out that, with the exception of Georgia, the Gentrys' position
[that a wrongful-death action exists for the death of a
nonviable fetus] apparently is not the law in any American
jurisdiction where there is no clear legislative direction to
include a nonviable fetus within the class of those covered by
the wrongful death acts. See Miccolis v. AMICA Mutual
Insurance Co., 587 A.2d 67, 71 (R.I. 1991); Gary A. Meadows,
Comment, Wrongful Death and the Lost Society of the
Unborn, 13 J. Legal Med. 99, 107 (1992); and Sheldon R.
Shapiro, Annotation, Right to Maintain Action or to Recover
Damages for Death of Unborn Child, 84 A.L.R.3d 411, 453-54,
§ 5[a] (1978 & Supp. 1992)."

(Emphasis added.)

Using language similar to Huskey, Justice Houston wrote specially

in both cases and argued for an approach that he believed would be

"consistent with the criminal law." Noting the definition of "person" in

Alabama's criminal-homicide statutes at that time, Justice Houston

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wrote: "There should not be different standards in wrongful death and

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.,

concurring in the result); Lollar, 613 So. 2d at 1253 (Houston, J.,

concurring in the result).

1. The Brody Act and This Court's Reiteration of Congruence

Between Alabama's Criminal-Homicide Statutes and the Wrongful
Death Act

In 2006, nearly 13 years after Justice Houston's observations in

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

Brody Act amended the definition of "person" in Alabama's criminal-

homicide statutes to expand who could be deemed a victim of a criminal

homicide to include an "unborn child in utero." See § 13A-6-1(a)(3), Ala.

Code 1975.

Before that amendment, the definition of "person" in Alabama's

criminal-homicide statutes was:

"[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

definition of "person" in the criminal-homicide statutes became:

"[A] human being, including an unborn child in utero at any

stage of development, regardless of viability."

§ 13A-6-1(a)(3) (emphasis added).

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

in utero fetus. Our holding in Mack rested, in large part, on the

Legislature's adoption of the Brody Act. Specifically, we noted that the

Brody Act "constitute[d] clear legislative intent to protect even nonviable

fetuses from homicidal acts." 79 So. 3d at 610. We also explained that the

public purpose of our wrongful-death statutes, including the Wrongful

Death Act, is to prevent homicide and that "this Court repeatedly has

emphasized the need for congruence between the criminal law and our

civil wrongful-death statutes." 79 So. 3d at 611 (emphasis added).

Thus, we held, after considering "the legislature's amendment of

Alabama's homicide statute to include protection for 'an unborn child in

utero at any stage of development, regardless of viability,' § 13A-6-

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

purpose of the Act is to prevent the death of a child. Id. In so holding, we

quoted with approval Justice Houston's special concurrences from Gentry

and Lollar regarding the need for congruence between Alabama's

wrongful-death statutes and its criminal-homicide statutes given that

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

Lollar, 613 So. 2d at 1253 (Houston, J., concurring in the result)).

Five years after this Court's decision in Mack, our Court reached

an identical result in Stinnett v. Kennedy, 232 So. 3d 202 (Ala. 2016). In

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

asked us to overrule those decisions. See Clay Kilgore Constr., Inc. v.

Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala. 2006) (noting absence

of a specific request to overrule existing authority and stating that,

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"[e]ven if we would be amenable to such a request, we are not inclined to

abandon precedent without a specific invitation to do so"). 45 I therefore

see no reason to abandon this precedent in deciding the question at issue

in the present appeals.

2. The Main Opinion is Overruling Mack and Stinnett

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

of a Minor Act must precisely mirror the definition of 'person' in our

criminal-homicide laws." ____ So. 3d at ____. Specifically, the main

opinion alleges that, because criminal liability is "more severe than civil

liability," the "set of conduct that can support a criminal prosecution is

almost always narrower than the conduct that can support a civil suit."

____ So. 3d at ____. According to the main opinion, an argument to the

contrary is "not only illogical, it was rejected in Stinnett itself." ____ So.

3d at ____. Based on the foregoing, the main opinion concludes that the

definition of "person" in Alabama's criminal-homicide law provides a

"floor" for the definition of personhood in wrongful-death actions, not a

45Seealso Alabama Dep't of Revenue v. Greenetrack, Inc., 369 So.

3d 640 (Ala. 2022) (declining to overrule precedent when the parties did
not expressly ask this Court to do so).
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"ceiling." ____ So. 3d at ____.

Contrary to the main opinion's assertion, our Court in Stinnett

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

phrase "borrowing the definition," it is difficult to imagine how much

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

that." ____ So. 3d at ____.

Additionally, in reaching the above conclusion, the main opinion

mistakes statutory definitions for liability standards. It is certainly true

that criminal law includes additional defenses (and sometimes includes

additional elements) and thus contains a "narrower" standard of liability

than civil law, but it is also true that definitions of terms can be the same

in the criminal-homicide statutes and the civil wrongful-death statutes.

Stinnett illustrates this. In that case, the plaintiff sued a physician

for the wrongful death of her unborn fetus pursuant to the Wrongful

Death Act. The defendant, emphasizing the congruence discussion in

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Mack, argued that an exception to liability for medical personnel in the

criminal-homicide statutes also prevented malpractice liability under the

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

providing medical care for a "[m]istake, or unintentional error").

Not surprisingly, our Court disagreed. Relying on Mack, we

explained that the liability standard differed between the criminal-

homicide statutes and the civil Wrongful Death Act. Therefore, this

Court held, the defendant could be liable for medical malpractice even if

she were a physician and committed an "unintentional error." We wrote:

"[Mack's] attempt to harmonize who is a 'person'

protected from homicide under both the Homicide Act and
Wrongful Death Act, however, was never intended to
synchronize civil and criminal liability under those acts, or
the defenses to such liability."

232 So. 3d at 215 (emphasis added); ____ So. 3d at ____ (quoting the same

language). Thus, contrary to the main opinion's position, our Court in

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)

in Alabama's criminal-homicide statutes to determine who a "minor

child" was under the Wrongful Death Act.

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Moreover, the main opinion's reasoning that the definition of

"person" in Alabama's criminal-homicide statutes provides a "floor" for

the definition of "child" in wrongful-death actions, not a "ceiling," is also

illogical given the changes brought about by the Brody Act.46 The

Legislature made an intentional decision to extend the criminal-homicide

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

goes further than the definition in the criminal-homicide statutes that

the Legislature did extend.

In sum, the main opinion overrules Mack and Stinnett47 sub silentio

46When construing a criminal statute in a civil action, the Rule of

Lenity should be applied because it would be "inconceivable" to give "the
language defining the violation ... one meaning (a narrow one) for the
penal sanctions and a different meaning (a more expansive one) for the
private compensatory action." Scalia & Garner, supra, at 297.

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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by decoupling the definitions in the criminal-homicide statutes and the

Wrongful Death Act, by removing the reasoning of those decisions, and

by overlooking our other caselaw requiring congruence between the

definition of "person" in Alabama's criminal-homicide statutes and the

definition of "minor child" in the Wrongful Death Act.48

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.

48The main opinion argues that the "bulk of [my] dissent is

animated by the view that Mack was wrongfully decided and that,
contrary to its holding, unborn children are not 'children' under the Act
after all." ____ So. 3d at ____ n.4. This is inaccurate. The opinions in
these cases are settled law, and I have not questioned them or their
reasoning. Moreover, as explained above, Mack arose after the
Legislature made an express change to the criminal-homicide statutes
that broadened the definition of "person" beyond the common law for the
first time. So that there is no doubt, the law in Alabama is clear (since
the Legislature amended the criminal-homicide statutes) that killing an
"unborn child in utero" is both a homicide and actionable under the
Wrongful Death Act -- and I agree with this law.

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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3. The Plaintiffs' Arguments Regarding the Brody Act are Mistaken

Because I would follow our prior precedent that there must be

"congruence" between the definition of "person" in Alabama's criminal-

homicide statutes and the definition of "minor child" in the Wrongful

Death Act, I must consider whether a frozen embryo is within the

definition of "person" in the criminal-homicide statutes, as amended by

the Brody Act -- a question that is hotly debated in the briefs. Because

the main opinion holds that the definition in the criminal-homicide

statutes is merely a "floor," it does not engage on this question.

As noted above, after the passage of the Brody Act, the definition of

"person" in the criminal-homicide statutes became: "[A] human being,

including an unborn child in utero at any stage of development,

regardless of viability." § 13A-6-1(a)(3) (emphasis added). The primary

argument between the parties is over the phrase "including an unborn

child in utero." On the one hand, the defendants argue strongly that the

statutes) or (2) independently determine the meaning of that term by

following the original public meaning of that term. As explained above,
the result is the same under either approach. The main opinion must
choose one way or the other. Either Mack and Stinnett were correct and
the main opinion is bound by the criminal-homicide statutes' definition
for "person," or the main opinion is bound by the original public meaning
of the term "minor child."
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phrase "including an unborn child in utero" indicates that the

Legislature, by adding this phrase to the definition, implied that "human

being" would not otherwise include an unborn child in utero (and

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

not intended to be a limiting phrase but, instead, merely provides one

example of a "human being," thus implying that "human being" is broad

enough to include a frozen embryo.

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

to in order to remove ambiguities and uncertainty in the enacting

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");

Scalia & Garner, supra, at 33 (recognizing that the textual purpose of an

act is "vital" to its context).

The Brody Act provides that it "shall be known as the 'Brody Act,'

in memory of the unborn son of Brandy Parker, whose death occurred

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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

amend [Alabama's homicide code], … to define person to include an

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

and one-half months pregnant."

Based on the contents of the Brody Act and its title, it seems quite

clear to me that the death of Brody Parker -- an unborn, in utero child --

spurred the Legislature to change the definition of a "person" in the

criminal-homicide statutes from the common-law meaning to a meaning

that now allows a defendant to be charged with murder when he or she

causes the death of a "human being" "in utero." In other words, the

textual purpose was to expand the definition of "person" to cover victims

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

to effect, and we are not allowed to enlarge them by construction. See

Holmes v. Sanders, 729 So. 3d 314, 316 (Ala. 1999) (explaining that this

Court presumes " 'that the legislature did not intend to make any

alteration in the law beyond what it declares either expressly or by

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unmistakable implication' " (quoting Beasley v. MacDonald Eng'g Co.,

287 Ala. 189, 197, 249 So. 2d 844, 851 (1971))).49

Second, the plaintiffs' proposed statutory construction of the

criminal-homicide statutes is contrary to the common law of homicide

and is not supported by the history of Alabama's criminal-homicide

statutes. In 1852, the Alabama Legislature passed the first criminal-

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

homicide perpetrated … to effect the death of any human being"

constituted murder. § 3080, Ala. Code 1852 (emphasis added). Although

every Code section addressing criminal homicide enacted between 1852

and 1977 used the term "human being" to describe the victim of murder

and manslaughter, the Legislature never defined the term.

After the passage of the first homicide statute, this Court held that

killing an unborn infant in utero did not constitute a murder, citing a

common-law treatise. For example, in Clarke v. State, 117 Ala. at 8, 23

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

being in rerum natura, is not considered as a person who can be killed,

within the description of murder ….' " (Quoting 3 Russell on Crimes (6th

ed.) (emphasis added).) 50

Then, in 1977, the Legislature repealed the previous criminal-

homicide statutes and replaced them with the new criminal-homicide

statutes. In doing so, the Legislature expressly adopted the common-law

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

definition remained unchanged until the adoption of the Brody Act, at

which point the Legislature, as explained above, went beyond the

common-law rule to expressly declare that a victim of a homicide or

assault (that is, a "human being") included an "unborn child in utero."

50The authority cited in Clarke was a leading criminal-law treatise

originally written about the common law by an English Justice named
William Oldnall Russell. Although this Court cited the sixth edition
(published in 1896), the earlier editions contained the same quote, dating
back to at least 1826. See, e.g., William Oldnall Russell, A Treatise on
Crimes and Indictable Misdemeanors at 424 (2d ed. 1826). In other
words, this Court in Clarke correctly stated and followed the content of
the common law.

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In short, the common law was clear that an unborn infant was "'not

considered as a person who can be killed.'" Clarke, 117 Ala. at 8, 23 So.

at 674 (citation omitted). The statutory law did not change this until the

passage of the Brody Act. Thus, the common-law definition remains,

except to the extent that it has been expressly changed by the Brody Act

to add an "unborn child in utero" to the definition of "person" in

Alabama's criminal-homicide statutes. To conclude otherwise would be

inconsistent with our caselaw cited above holding that " '[a]ll statutes are

construed in reference to the principles of the common law; and it is not

to be presumed that there is an intention to modify, or to abrogate it,

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

51I note briefly that, were we to adopt the plaintiffs' proposed

construction of the definition of "person" in the criminal-homicide
statutes, we risk criminalizing the IVF process. Under the Rule of Lenity,
"'criminal statutes are to be strictly construed in favor of those persons
sought to be subjected to their operation, i.e., defendants.'" Ex parte
Bertram, 884 So. 2d 889, 891 (Ala. 2003) (quoting Clements v. State, 370
So. 2d 723, 725 (Ala. 1979), overruled on other grounds by Beck v. State,
396 So. 2d 645 (Ala. 1980)). Thus, if there were any reasonable doubts as
to the statutory construction of the criminal-homicide statutes, this
Court would apply the Rule of Lenity and strictly construe the definition
of "person" in favor of those persons sought to be subjected to their
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For all of these reasons, it seems clear to me that a frozen embryo

does not fit within the statutory definition of "person" as that term is used

in Alabama's criminal-homicide statutes and thus cannot be a "minor

child" under the Wrongful Death Act.

D. Article I, § 36.06, of the Alabama Constitution of 2022 Has No Impact

on the Terms in the Wrongful Death Act from 1872

The main opinion also argues that, even if the word "child" in the

Wrongful Death Act were ambiguous, Article I, § 36.06, of the Alabama

Constitution of 2022 "operates in this context as a constitutionally

imposed canon of construction," which "require[s] courts to resolve the

ambiguity in favor of protecting unborn life." ____ So. 3d at ____. That

section "acknowledges, declares, and affirms that it 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." § 36.06(b) (emphasis

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

operation -- for instance, in a future case, perhaps fertility-clinic workers.

This is yet another reason why the plaintiffs' interpretation of the
criminal-homicide statutes is mistaken.

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text of § 36.06 about resolving ambiguities in statutes (assuming there

was one here), and the main opinion cites no authority supporting such a

rule of construction. Even if we were to assume such a rule of

construction, there is nothing in § 36.06 that tells us how to best protect

frozen embryos. Specifically, § 36.06 does not indicate (1) whether we

should protect frozen embryos by updating the words in the Wrongful

Death Act or (2) whether we should protect frozen embryos via the

ordinary common-law route (that is, by allowing the claims of negligence

and wantonness to move forward in these actions). Why is one option

more constitutionally mandated than another -- especially when one

option requires us to discount the original public meaning of the terms in

the Wrongful Death Act as it was passed by the Legislature in 1872?

The second problem with this position is timing. The Wrongful

Death Act was passed in 1872, whereas § 36.06 was passed in 2018.

Section 36.06 cannot retroactively change the meaning of words passed

in 1872. The Legislature in 1872 had no idea about a constitutional

amendment that would be passed 150 years later. If the Legislature

wanted to change the words in the statute, they should have changed the

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words in the statute.52

Although I agree with much of what Chief Justice Parker so

eloquently states in his special concurrence regarding the "sanctity of

unborn life," ____ So. 3d at ____ (Parker, C.J., concurring specially), I do

not agree with his discussion of the "Effect of Constitutional Policy." ____

So. 3d at ____ (Parker, C.J., concurring specially). In particular, I believe

he is mistaken when he asserts that the People of Alabama "explicitly"

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

these appeals is whether Alabama law provides a private cause of action,

for money damages, for the loss of a frozen embryo. There is no language

in this constitutional amendment mentioning private causes of action, or

money damages, or frozen embryos, or IVF. Compare Dobbs, 597 U.S. at

52It is of course true, as the main opinion notes, that the

Constitution is the "'supreme law of the state'" and that all statues
"'must yield'" to it. ____ So. 3d at ____ n.7. However, the main opinion
fails to explain why the original public meaning of the term "minor child"
in the Wrongful Death Act violates -- that is, does not "yield" to -- § 36.06.
Although the main opinion contends that the definition of "child" that it
applies here is "in keeping with the definition that was established by
this Court's precedents at the time § 36.06 was adopted," id. (emphasis
omitted), I fail to see how that could be true given that, as explained in
detail above, the main opinion is overruling Mack and Stinnett.
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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

of my conclusions discussed above, including those premised on the

common law, the criminal-homicide statutes, and our prior caselaw. It is

for all of these reasons that I find this argument unpersuasive.

E. The Suggestion that the Common Law Has Been "Collectively

Repealed" Is Mistaken

Justice Shaw argues that it is "well settled" that the meaning of

the term "minor child" "includes an unborn child with no distinction

between in vitro or in utero." ____ So. 3d at ____ (Shaw, J., concurring

specially) (emphasis added). Other than simply referring to the main

opinion, Justice Shaw cites no legal authority that this lack of any

distinction is "well settled." Regardless, he is mistaken for all the reasons

explained above.

As to his assertion that "the legislature, the constitution, and this

Court's decisions have collectively repealed the common law's prohibition

on … seeking a civil remedy for injuries done to the unborn," ____ So. 3d

at ____ (Shaw, J., concurring specially), Justice Shaw provides no

analysis on this point either and, instead, simply provides a string

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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

earlier). Id. at ____. Regardless, it is well settled that the Legislature --

not this Court -- "repeal[s]" statutes.

Further, the question in these appeals is not whether there is a

common-law "prohibition on seeking a civil remedy for injuries done to

the unborn" (as Justice Shaw frames the issue). ____ So. 3d at ____

(Shaw, J., concurring specially) (emphasis added). Instead, the question

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.

Justice Shaw appears to contend that the common law has a

narrower role in providing meaning for words used in Alabama statutes

than I have explained above. Relying on a special concurrence to a 1974

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

of England shall be the rule of decisions in Alabama unless changed by

the legislature."'" ____ So. 3d at ____ (Shaw, J., concurring specially)

(quoting Swartz v. United States Steel Corp., 293 Ala. 439, 446, 304 So.

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2d 881, 887 (1974) (Faulkner, J., concurring specially)) (emphasis added).

He argues "'[o]n the contrary,'" Alabama law merely provides that the

common law applies so long as it is "'[n]ot inconsistent with the

constitution, the laws, and the institutions of Alabama.'" Id. (some

emphasis omitted); id. at ____ ("But if it is inconsistent, then it need not

be first altered or repealed by the legislature.").

I fail to see a distinction between these standards and what our

Court has repeatedly (and very recently) broadly stated: "'All statutes

are construed in reference to the principles of the common law,'" Grant,

____ 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

expressly declared,' " Ex parte Christopher, 145 So. 3d at 65 (citation

omitted; emphasis added); see also 3A Norman J. Singer and J.D.

Shambie Singer, Statutes and Statutory Construction § 69:9 (explaining

that we "presume the legislature retained the common-law meaning").

Justice Shaw does not cite or distinguish any of this authority.

More fundamentally, Justice Shaw does not explain how using the

common-law understanding of the meaning of the term "child" to

determine whether a frozen embryo is a "minor child" under the Wrongful

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Death Act is "inconsistent" with "'the constitution, the laws, and the

institutions of Alabama.'" ____ So. 3d at ____ (Shaw, J., concurring

specially) (emphasis and citation omitted). As explained thoroughly

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

far as to encompass unborn, in utero children, as reflected in the holding

and language discussed above in Stinnett, 232 So. 3d at 215 (which

postdates the two cases cited by Justice Shaw).53

Thus, unless and until the Legislature updates Alabama law in

such a way that demonstrates that a "frozen embryo" is a "minor child,"

this Court remains bound by the original public meaning of that term as

it was understood in 1872 when the Legislature passed the Wrongful

Death Act.

F. Not a Single State Agrees with the Main Opinion

Not a single state has held that a wrongful-death action (or a

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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criminal-homicide action) can be brought for the destruction of a frozen

embryo. In fact, a number of jurisdictions have rejected such causes of

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

bring wrongful-death action against hospital based on destruction of

frozen embryos because the embryos had no statutory rights); Jeter v.

Mayo Clinic Arizona, 211 Ariz. 386, 400, 121 P.3d 1256, 1270 (Ct. App.

2005) (holding that cryopreserved, three-day-old, eight-cell pre-embryo

was not a "person" for purposes of recovery under wrongful-death

statute); and Davis v. Davis, 842 S.W.2d 588, 594 (Tenn. 1992) (holding

that under Tennessee law pre-embryos could not be considered

"persons").

It is certainly true that this Court is not bound by the results in

other states; however, when we are the sole outlier, it should cause us to

carefully reexamine our conclusions about expanding the reach of a

statute passed in 1872 and our understanding of the common law.

G. The Consequences of This Decision and Why That is Relevant

The main opinion's holding will mean that the creation of frozen

embryos will end in Alabama. No rational medical provider would

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continue to provide services for creating and maintaining frozen embryos

knowing that they must continue to maintain such frozen embryos

forever or risk the penalty of a Wrongful Death Act claim for punitive

damages. 54

There is no doubt that there are many Alabama citizens praying to

be parents who will no longer have that opportunity. And, there is no

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

that IVF technology has the potential for grave misuse.

I am empathetic to both sides of this debate; however, it is not my

role to take a position one way or another on this issue. Even so, ending

the creation of frozen embryos will undoubtedly cause significant

consequences that will affect the future lives of thousands of Alabama

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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significance of these consequences (as well as the need for comprehensive

regulation) further illustrates why this question is an issue that should

be addressed by the elected representatives of the people of Alabama in

the Legislature, not this Court. I thus urge the Legislature to promptly

consider these issues to provide certainty to these Alabama parents-to-

be and to the medical professionals who are attempting to provide

services to them. 55

55As to the consequences of a contrary ruling, the main opinion

discusses, but does not rely upon, a "parade of horribles" that the
plaintiffs claim might result from a ruling that the term "minor child" in
the Wrongful Death Act does not include frozen embryos. The plaintiffs
are mistaken. These cases have no connection to partial-birth abortions,
and Alabama's law on partial-birth abortions would not be impacted by
a ruling in favor of the defendants in these civil wrongful-death cases.
See § 26-23-3, Ala. Code 1975. There are also no facts in the record to
support any such argument, and there is no doubt the Wrongful Death
Act could reach a partial-birth abortion situation as appropriate.

As to the plaintiffs' second argument (regarding a possible future

case involving a yet to be invented artificial womb), the answer to this
futuristic hypothetical is simple. These cases are about the facts today
and are based upon a statute that has not changed in its relevant terms
since 1872. Should the facts change, the Legislature can address future
technologies and can do so far better than this Court.

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

instance, he suggests: "one embryo at a time") because certain other

countries have more regulations on their IVF processes. ____ So. 3d at

____ (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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describing the regulations that currently exist in other countries and

suggests that the Alabama Legislature may wish to consider those

regulations. The Alabama Medical Association strongly disagrees with

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

Justice or the position of the Alabama Medical Association is correct,

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-

to-dismiss stage and there is no factual record at this point. Therefore,

no party has had the opportunity to investigate and respond to the

assertions by the Chief Justice or the Alabama Medical Association.

However, as to the Chief Justice's suggestion that the Legislature

consider these issues immediately (including his suggestion that they

consider comprehensive regulation), I strongly agree.

II. The Plaintiffs' Negligence and Wantonness Claims

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 ____.

Because I would affirm the dismissal of the plaintiffs' wrongful-death

claims, I must reach this issue. For the reasons stated below, I would

reverse the trial court's dismissal of those claims.

The defendants are making a "catch-22" argument. Cline v.

Ashland, Inc., 970 So. 2d 755, 772 n.6 (Ala. 2007) (Harwood, J.,

dissenting) ("'Catch-22: a frustrating situation in which one is trapped

by contradictory regulations or conditions.' Random House Webster's

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

claim (such as claims of negligence or wantonness) is available because

no "damages" are recoverable.

I am concerned that such a rule might allow the destruction of life

with no consequence, even for someone who commits an intentionally

wrongful act. As explained by the plaintiffs, IVF is used by many

parents-to-be in dire circumstances (for instance, because of reproductive

issues caused by cancer, age, or infertility). Their frozen embryos are

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undeniably precious. Thus, this argument has the potential to be both

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

decision in Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640, 642

(Ala. 1985), that the trial court's dismissal of their common-law tort

claims in response to a Rule 12(b)(6), Ala. R. Civ. P., motion was

improper. Under Raley, they argue, once a pleader has set out a cause of

action, the failure of the complaint to allege requisite elements of relief

(that is, damages) is not usually a ground for a motion to dismiss for

failure to state cause of action but, rather, must be challenged by a

motion to strike, by objection to evidence, or by requested charges.

Accordingly, they contend that the trial court's dismissal of those claims

is due to be reversed.

"Alabama is a 'notice pleading' state." Surrency v. Harbison, 489 So.

2d 1097, 1104 (Ala. 1986) (citing Simpson v. Jones, 460 So. 2d 1282

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(Ala.1984)). Rule 8(a), Ala. R. Civ. P., provides:

"(a) Claims for Relief. A pleading which sets forth a

claim for relief, whether an original claim, counterclaim,
cross-claim, or third-party claim, shall contain (1) a short and
plain statement of the claim showing that the pleader is
entitled to relief, and (2) a demand for judgment for the relief
the pleader seeks. Relief in the alternative or of several
different types may be demanded."

"The primary purpose of notice pleading is to provide defendants

adequate notice of the claims against them." Cathedral of Faith Baptist

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

862). As relevant here,

" 'the dismissal of a complaint is not proper if the pleading

contains "even a generalized statement of facts which will
support a claim for relief under [Rule 8, Ala. R. Civ. P.]"
(Dunson v. Friedlander Realty, 369 So. 2d 792, 796 (Ala.
1979)), because "[t]he purpose of the Alabama Rules of Civil
Procedure is to effect justice upon the merits of the claim and
to renounce the technicality of procedure." Crawford v.
Crawford, 349 So. 2d 65, 66 (Ala. Civ. App. 1977).' "

Id. (quoting Simpson, 460 So. 2d at 1285).

In their amended complaints, the plaintiffs alleged that the

defendants' negligent and wanton conduct in failing to secure their

respective facilities "led to and/or caused the destruction of the plaintiffs'

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embryo[s]." As a result of that allegedly negligent and wanton conduct,

the plaintiffs "demand[ed] judgment for compensatory damages,

including but not limited to, [the] value of embryonic human beings …

and for the severe mental anguish …." (meaning that they are seeking

any valid compensatory damages). (Emphasis added).

The defendants do not attempt to address this Court's prior decision

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

dismissal at the pleading stage based upon an argument that damages

had not been properly pleaded. Based on Raley, supra, I would reverse

the trial court's dismissal of the plaintiffs' negligence and wantonness

claims.

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