LePage v. Center for Reproductive Medicine

Rel: May 3, 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
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.




         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)

                     On Applications for Rehearing

MITCHELL, Justice.

     SC-2022-0515 -- APPLICATION OVERRULED. NO OPINION.

     SC-2022-0579 -- APPLICATION OVERRULED. NO OPINION.

     Parker, C.J., and Shaw, Wise, Bryan, Mendheim, and Stewart, JJ.,

concur.

     Sellers, J., dissents, with opinion.

     Cook, J., dissents.



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SC-2022-0515; SC-2022-0579

SELLERS, Justice (dissenting).
     One of the cardinal rules of jurisprudence is that judicial decisions

should follow reason and logic so that no one is ever truly surprised by

them. Indeed, an important role of the judicial branch is to ensure that

the rules governing society create stability and certainty that comport

with the English concept of "the law of the land," i.e., to reflect the

common experience, tradition, and culture of citizens over the

philosophical, creative, and speculative.

     As a court, we labor in anonymity, far away from the tensions

experienced by other branches of government. This case has removed us

from any notion of ivory-tower isolation and has subjected us to the

scrutiny of world opinion, thrusting us into a public discussion that was

as unwarranted as it was unanticipated.

     While many of our opinions have unintended consequences,

oftentimes such consequences nevertheless are foreseeable because our

decisions impact others who, although they were not parties to the case,

were generally aware of the potential repercussions of a reasonable

decision. In this case, our decision was a surprise, if not a shock, to our

citizens. The majority opinion on original submission had significant and

                                    3
SC-2022-0515; SC-2022-0579

sweeping implications for individuals who were entirely unassociated

with the parties in the case. Many of those individuals had no reason to

believe that a legal and routine medical procedure would be delayed,

much less denied, as a result of this Court's opinion.

     Because those individuals never had an opportunity to submit

briefs in this case to explain their positions and the law supporting them,

they now have a new regime that has been forced upon them for which

they had neither input, nor redress, nor a hearing. The majority opinion

on original submission also addressed issues and arguments that were

never raised in the parties' initial briefs and never argued by the parties.

It is for these reasons that I would have granted the request to conduct

oral argument on the applications for rehearing, including providing the

various amici curiae an opportunity to voice their concerns, to explain the

legal bases of their positions, and to highlight the various loose ends left

dangling by this Court's opinion.

     In light of the foregoing, and consistent with my special writing on

original submission, I respectfully dissent from the denial of the

applications for rehearing, especially the denial of oral argument on

rehearing.
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