When does life begin? This is the fundamental issue in a lawsuit against the Center for Reproductive Medicine for wrongful death of embryos, according to the plaintiff’s legal counsel. The attorney claims the Center is embarrassed of the legal position it has taken and is attempting to hide their arguments from the public.
Mobile Attorney Jack “Trip” Smalley from the Long & Long law firm is representing Felicia and Scott Aysenne of Prichard, whose last embryo was destroyed during an incident in December 2020 when a Mobile Infirmary patient was allegedly able to wander into the Center’s cryogenic freezer and destroy numerous preserved embryos. The couple filed their complaint in September along with two other couples in a separate lawsuit. Both complaints claim wrongful death of their embryos.
In a motion to dismiss filed by the defense on Oct. 20, the Center and Mobile Infirmary have argued the embryos are “not ‘persons’ under the law.”
Smalley said his clients filed their lawsuit only after failed attempts to reach out to the Center. He said this is unusual as parties in these types of tort cases normally both want to sit down to discuss what happened. He said the goal of the lawsuit is to make sure this never happens again at the Center and to get justice for his clients.
According to Smalley, it is his clients’ understanding that a Mobile Infirmary patient was able to access the cryogenic storage area because lab workers had propped open doors during the night shift on Dec. 20, 2020, to save time walking between the Center’s storage area and lab. He said numerous embryos were destroyed by this patient and it is likely that other families were affected.
Smalley said the Asyennes’ embryo was the last the couple had in storage. He did not wish to comment on his clients’ health conditions.
“This couple’s dreams have been crushed because the defendant didn’t do the simplest thing they were required to do, that they promised they’d do, that they guaranteed they’d do, that they took their money to do,” Smalley said.
In the plaintiff’s complaint, it is argued that this storage facility must be held to a high standard of security, just as the Department of Human Resources requires childcare and nursing home facilities to meet certain security standards as they are responsible for the lives of the children they are looking after.
“You have to provide an additional layer of security for those among us who are least capable of taking care of themselves. You have to have a different type of security depending on what you protect,” Smalley said.
Smalley said this line of thought is less sensational than it sounds and argued that the embryos under the Center’s purview deserved a higher level of protection than would stock items in inventory.
Due to federal regulations protecting patients, Smalley said the plaintiffs have not been able to identify the patient at fault. The attorney expects the patient’s name will be learned through the course of the trial and additional legal action could be taken. The extent of the Center’s security measures is unknown as well. However, Smalley believes if they were followed there would not be a lawsuit in court.
The Mobile Police Department could not provide Lagniappe with any record of an incident at the Infirmary for the date provided. Smalley said he has not learned of a report filed either, but had there been, he believes an investigation would have assisted in gathering relevant evidence at the time that may not be attainable now. He believes a report should have been made.
“If someone broke into my home and my office, and accessed something that was supposed to be most secure under my supervision, I certainly would want the police to know,” Smalley said.
Smalley said that defenses’ motion to dismiss because embryos are not considered “persons” under the law was shocking, explaining that the Center markets itself as an institution that promotes families. He said the verbiage used in the defenses’ attempt to dismiss the wrongful death complaint is not found in the Centers’ contract or promotional material. The motion to dismiss argues that the in vitro subjects are “pre-embryos” and cannot be considered persons under the law until they are in utero. The question of personhood even leads the defense to question the Aysennes’ standing as parents.
“They were told through the Center’s help they could have a family,” Smalley said.
Smalley said the lawsuit is not a pro-choice or anti-abortion matter. Regardless of if settled law permits a woman to elect for an abortion, Smalley said the destruction of the embryos in 2020 was not the choice of the parents.
“The fundamental question is when does life begin,” Smalley said, adding embryos have genetic distinction and possess all required qualities of developing into viable human beings.
The defense has argued a five-year agreement to store the embryos was signed in 2013 and had expired in 2018, meaning the Center was authorized to dispose of the embryos. However, Smalley said his clients have receipts of monthly payments through December 2020 to the Center for the lab’s storage services.
With the motion to dismiss, the Center also filed a motion to seal. Smalley said this was very unusual, and explained that parties will seek to seal filings as not to expose matters of national security or trade secrets.
“You certainly don’t see [a motion to seal] in cases like this,” Smalley said. “I think it’s clear that it is because they are embarrassed at the legal position they are taking.”
Lagniappe reached out to Smalley last week seeking the court documents and they were promptly provided. Smalley said he obliged the newspaper out of respect and to save it from spending more than $50 on Alacourt (the state’s court filing portal) to obtain. Smalley said the defendants contacted him on Friday to complain Lagniappe was wrongfully able to access the Center’s motion to dismiss.
Through Alacourt, the motion to dismiss only shows four pages. The motion provided to the newspaper is 64 pages long. The defendant’s motion to dismiss was filed on Oct. 20, 2021, and was simultaneously filed with a motion to seal arguing that the motion includes “sensitive nature of the medical services at issue in this case, which includes assisted reproductive techniques.” The motion to seal is designated as “pending” on the portal.
According to Smalley, documents cannot be sealed until a hearing has been held and a court order is entered. Any such hearing has not happened though, according to Smalley. He cited the Alabama Supreme Court’s Holland v. Eads 1993 decision, which he said provides six criteria that can be used to justify sealing documents and must have evidence to reach a burden of proof. This includes documents that may include trade secrets; matters of national security; promote scandal or defamation; private family matters; pose a serious threat or harm to parties in question; or poses the potential for harm to third persons not parties to the litigation.
“I was shocked to learn on Friday that, at least electronically, these documents are not available to the public,” Smalley said. “That is a violation of Alabama law. The Alabama Supreme Court has held that it is not just an abuse of discretion but an irreversible error for pleas to be sealed without the procedural requirements outlined in Holland v. Eads.”
Smalley said this could simply have been a mistake in the filing process. However, he said it is “disconcerting and raises some red flags” and that they are working on rectifying it immediately.
UPDATE: Mobile County Circuit Clerk Civil Division Supervisor Charles “Chuck” Lewis confirmed with the newspaper on Monday afternoon no court order was provided to seal the defense’s motion to dismiss. However, he said, defense attorneys on the case contacted him last week to ask for the motion to be sealed. He said the requests were common and attorneys will contact him when they have been approved by a court. The motion to dismiss was made public at around noon on Monday when it was brought to his attention. A few hours later, however, they were removed again.
Judge Phillips spoke with Lagniappe on Tuesday morning to clarify that this motion was “filed under seal” in a separate complaint against the center for the same incident and “out of convenience” this status was attributed to the Aysennes’ case as well, though not reflected on the Aysennes’ case on Alacourt. Phillips has expedited a hearing for Thursday, Nov. 4, to hear the merits of the defenses’ motion to seal and to make an official ruling.
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