Three couples whose frozen embryos were destroyed when a wandering Mobile hospital patient dropped the specimens can sue for wrongful death because the embryos were “children,” the Alabama Supreme Court ruled Friday in reversing a judge’s decision to throw out the case.

The Center for Reproductive Medicine, a fertility clinic used by the couples, and Mobile Infirmary Medical Center, where the embryos were being stored, claimed the couples could not sue for wrongful death because Alabama’s Wrongful Death of a Minor Act does not cover embryos outside the womb.

But the Alabama Supreme Court disagreed when it reversed Mobile County Circuit Court Judge Jill Parrish Phillips’ ruling to dismiss the case in 2022.

The Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” wrote Alabama Supreme Court Justice Jay Mitchell. “[T]he 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.”

The couples accused the defendants of wrongful death, negligence and breach of contract in two lawsuits filed in 2021 in Mobile County Circuit Court.

Mobile Infirmary “allowed one of its patients to leave and/or elope from his or her room in the Infirmary’s hospital area and access the cryogenic storage area,” according to one of the lawsuits.

The patient removed embryos from the freezer, and “it is believed that the cryopreservation’s subzero temperatures burned the eloping patient’s hands, causing him or her to drop the cryopreserved embryonic human beings on the floor, where they began to slowly die,” one of the filings stated.

By the time hospital staff noticed the incident, all of the embryos died, according to the lawsuits.