Wrongful-death suit filed on behalf of aborted embryo

MONTGOMERY, Ala. -- An Alabama probate judge has recognized the legal rights of an aborted embryo just months after voters approved a state constitutional amendment recognizing the rights of the unborn.

A civil rights attorney said the lawsuit to which the ruling applies is unlikely to persevere in the face of the Supreme Court's 1973 decision legalizing abortion.

Ryan Magers, 21, filed the wrongful-death suit in February against the Alabama Women's Center for Reproductive Alternatives, which he says prescribed an abortion pill to his ex-girlfriend. An attorney for the center did not respond to an email requesting comment. The abortion pill is legal.

Magers' attorney, J. Brent Helms, told The Associated Press on Friday that Magers disagreed with his girlfriend's decision to have an abortion and tried to talk her out of it. She was 17 at the time and he was 19, Helms said.

"He wanted to be a father to his child," Magers said. "He says no father should have to go through this."

Giving a boost to the lawsuit, Madison County Probate Judge Frank Barger on Wednesday opened an estate for the embryo, identified in the lawsuit as "Baby Roe," and agreed to allow Magers to represent the estate. "Baby Roe" is a reference to the U.S. Supreme Court's Roe v. Wade ruling establishing the right of women to abort a fetus unable to survive outside the womb.

Both the judge's decision and the lawsuit partly hinge on new language in the Alabama Constitution stating it is the state's policy to recognize the "rights of unborn children." Voters in November approved adding the language to the constitution. Personhood Alabama, an anti-abortion group, said it is involved in the lawsuit.

The amendment "affirmed that the public policy of the State of Alabama ensures the protection of the rights of the unborn child," Helms said. "Obviously, in this case we are vesting this deceased unborn child with legal rights."

Probate judges typically require a death certificate to open an estate. Helms instead filed a memorandum citing the amendment and past Alabama Supreme Court cases he said "recognized the personhood of unborn children." One case allowed a wrongful-death lawsuit when an injury caused the miscarriage of a nonviable fetus or embryo.

Helms said he believes this case is the first of its kind in the country.

Randall Marshall, executive director of the American Civil Liberties Union in Alabama, called the probate judge's decision "disturbing," but noted it is only a "preliminary procedural issue." He predicted the lawsuit would ultimately fail.

"Lawsuits like these are an attempt to give boyfriends the right to veto a woman's decision about abortion," Marshall wrote in an email. "The Supreme Court has made clear that the final decision is hers to make."

A representative of Planned Parenthood said giving rights to a fetus or embryo would be a dangerous precedent if upheld.

"Not only could this outlaw all abortion -- even in cases of rape, incest and when the life of the woman is at risk -- it could also outlaw many forms of birth control, including IUDs and emergency contraception, as well as fertility treatments like IVF," said Staci Fox, President and CEO of Planned Parenthood Southeast Advocates.