If a fertility clinic discards an unused human embryo that was created in a lab and never transferred to a uterus, is that a crime under Tennessee's Human Life Protection Act?

Subject

Whether Tennessee's Human Life Protection Act (the post-Dobbs criminal abortion statute) applies to the disposal of human embryos that were created via in-vitro fertilization and have not been transferred to a woman's uterus.

Plain-English summary

After Dobbs v. Jackson Women's Health Organization in 2022, Tennessee's Human Life Protection Act (Tenn. Code Ann. § 39-15-213) took effect as a near-total criminal abortion statute. The IVF community in Tennessee asked an immediate practical question: does the statute prohibit disposing of unused IVF embryos? IVF cycles routinely create more embryos than will be implanted, and clinics dispose of the rest in some way (discard, donation, indefinite cryopreservation).

Senate Majority Leader Jack Johnson asked the AG for clarity. The AG's answer is no.

The reasoning is purely textual. The Act criminalizes "performing or attempting to perform an abortion." § 39-15-213(b). To "perform an abortion" means using "an instrument, medicine, drug, or … other substance or device with intent to terminate the pregnancy of a woman known to be pregnant." § 39-15-213(a)(1). To be "pregnant" within the meaning of the Act, a woman must have "a living unborn child within her body." § 39-15-213(a)(4).

Each of those statutory elements requires the embryo to be inside a woman. An IVF embryo in a lab dish, before transfer to a uterus, is not "within" any woman's body. There is therefore no "pregnancy" to "terminate," and disposing of the embryo cannot be "criminal abortion."

The AG noted (in passing) that an in-vitro embryo may technically meet the definition of "[u]nborn child" in § 39-15-213(a)(4), but the Act doesn't prohibit disposal of an unborn child as such; it prohibits abortion, which is the termination of a pregnancy in a woman's body.

This is a narrow statutory-construction opinion. It tells fertility clinics, IVF patients, OBGYN practices, and prosecutors how the AG reads the Human Life Protection Act in this discrete context. It does not address other Tennessee laws that might bear on embryo handling (research-use restrictions, custody disputes between separated couples, donation rules, or healthcare-licensure regulations). It also does not address whether the legislature could amend § 39-15-213 to cover in-vitro embryos.

What this means for you

This is a narrow, two-page statutory-construction opinion. It resolves one question and expressly does not reach other Tennessee or federal laws on embryo research, donation, disposition, or civil claims.

Tennessee fertility clinics and IVF patients

Under the opinion, disposing of a human embryo created by IVF that has never been transferred to a woman's uterus is not "criminal abortion" under § 39-15-213, because each element of the offense requires terminating the pregnancy of a woman "known to be pregnant," and "pregnant" is defined as having "a living unborn child within her body." An in-vitro embryo in a lab is not within a woman's body. The opinion addresses only § 39-15-213 and does not speak to other laws governing embryo research, donation, or disposition.

Reproductive-healthcare attorneys and prosecutors

The opinion reads § 39-15-213 textually: the offense turns on terminating a pregnancy within a woman's body, so the statute does not reach the disposal of an in-vitro embryo before transfer. The opinion notes that an in-vitro embryo "may fit the Act's definition of '[u]nborn child,'" but holds the Act prohibits abortion (terminating a pregnancy), not the disposal of an unborn child as such. It does not address selective reduction, ectopic-pregnancy or miscarriage care, or the § 39-15-213(c) defenses.

State legislators

The opinion's reading is bound by the statutory text ("within her body" / "pregnant"), so on its analysis § 39-15-213 as written does not reach in-vitro embryos. The opinion does not address whether the legislature could amend the Act to cover them.

Common questions

Q: Does this opinion apply to embryos in storage that the patient never returns to claim?

The opinion is about disposal generally and doesn't draw a distinction between actively-discarded embryos and abandoned ones. The Act's elements (in-vitro vs. in-uterus) don't turn on the patient's intent or the clinic's procedure. Either way, the embryo is not "within" the patient's body, so § 39-15-213 doesn't apply.

Q: What about embryos that were transferred and then naturally lost to the patient's body?

Natural pregnancy loss isn't "performing or attempting to perform an abortion" under § 39-15-213(a)(1) because no instrument, medicine, drug, or other substance or device is being used with intent to terminate. § 39-15-213 is about active termination of pregnancy.

Q: Does this affect selective reduction of a multi-embryo IVF transfer?

The opinion does not address selective reduction. Its reasoning turns on the embryo being outside a woman's body; selective reduction involves a pregnancy already within a woman's body, which is a different factual setting the opinion does not analyze.

Q: What if a clinic uses an embryo for stem-cell research instead of disposing of it?

The opinion addresses disposal. Research use of embryos is regulated by separate Tennessee laws and federal grant rules; this opinion doesn't speak to those. Confirm research protocols with counsel and IRB before proceeding.

Q: Does this protect embryo donation between couples?

Yes, in the sense that donation isn't "criminal abortion." Embryo donation is governed by family law, contracts, and ART (assisted-reproductive-technology) regulations. None of those is § 39-15-213.

Q: Can a state prosecutor disagree with this opinion?

AG opinions are persuasive but not binding. A district attorney who reads the Act differently could theoretically charge a fertility clinic. The Act's text would still control on a motion to dismiss; the AG's analysis is well-anchored to the statutory text and would likely be persuasive in defense.

Q: What about wrongful-death claims for in-vitro embryos?

That's separate from § 39-15-213. Tennessee wrongful-death law and the definition of "person" under various civil statutes are governed by different rules. The 2024 Alabama Supreme Court decision in LePage addressed exactly this question under Alabama's wrongful-death statute (different state, different statutory framework). For Tennessee civil claims involving embryos, consult specialized counsel.

Background and statutory framework

Human Life Protection Act, Tenn. Code Ann. § 39-15-213. Tennessee's post-Dobbs criminal abortion statute, which became enforceable after Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). § 39-15-213(b) provides that "a person … commits the offense of criminal abortion" by "perform[ing] or attempt[ing] to perform an abortion." § 39-15-213(a)(1) defines "perform an abortion" as using "an instrument, medicine, drug, or … other substance or device with intent to terminate the pregnancy of a woman known to be pregnant." § 39-15-213(a)(3) defines "[p]regnant" as having "a living unborn child within her body." § 39-15-213(a)(4) defines "[u]nborn child" inclusively (which the AG notes may technically include in-vitro embryos).

The territorial limit. Each statutory element requires the embryo or fetus to be in a woman's body. The text doesn't reach embryos in IVF lab dishes or in cryopreservation. The AG's opinion is a strict-text reading.

The opinion's narrow scope. The AG opinion is two pages and addresses only § 39-15-213. It does not address:

• Tennessee laws on embryonic-stem-cell research.
• Tennessee laws on disposition of frozen embryos in custody disputes.
• Tennessee laws on ART practices, clinic licensure, or laboratory standards.
• Federal law (FDA, NIH, HHS) on embryo handling.
• Civil claims (wrongful death, contract, property) involving embryos.

Comparison with Alabama (post-2024). In February 2024, the Alabama Supreme Court held in LePage v. Center for Reproductive Medicine that frozen embryos are "children" under Alabama's wrongful-death statute. Alabama's legislature passed a fix to protect IVF clinics from civil liability in 2024. Tennessee has not had a comparable judicial decision, and § 39-15-213 (criminal, not civil) is read narrowly here.

Citations

• Tenn. Code Ann. § 39-15-213(a)(1) (definition of "perform an abortion")
• Tenn. Code Ann. § 39-15-213(a)(3) (definition of "pregnant")
• Tenn. Code Ann. § 39-15-213(a)(4) (definition of "unborn child")
• Tenn. Code Ann. § 39-15-213(b) (offense of criminal abortion)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-12.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 20, 2022
Opinion No. 22-12
Applicability of the Human Life Protection Act to the Disposal of Human Embryos that Have
Not Been Transferred to a Woman's Uterus
Question
Is the disposal of a human embryo that has not been transferred to a woman's uterus
punishable as "criminal abortion" under the Human Life Protection Act?
Opinion
No. The Human Life Protection Act only applies when a woman has a living unborn child
within her body.
ANALYSIS
Under Tennessee's Human Life Protection Act, "[a] person … commits the offense of
criminal abortion" by "perform[ing] or attempt[ing] to perform an abortion." Tenn. Code Ann.
§ 39-15-213(b). To "perform an abortion" within the meaning of the law, a person must use an
"instrument, medicine, drug, or … other substance or device with intent to terminate the
pregnancy of a woman known to be pregnant." Id. § 39-15-213(a)(1). And to be "pregnant" within
the meaning of the law, a woman must have "a living unborn child within her body." Id. § 39-15-
213(a)(4) (emphasis added).
Disposing of an embryo that was created outside a woman's body and that has never been
transferred to a woman's body thus does not qualify as "abortion." Id. § 39-15-213(a)(1). Such
an embryo may fit the Act's definition of "[u]nborn child," id. § 39-15-213(a)(4), but the Act does
not prohibit the embryo's disposal unless and until it is "living … within" a woman's body, id.
§ 39-15-213(a)(3). Only then can the embryo's gestation render a woman "[p]regnant," id., and if
there is no "pregnancy" to "terminate," there can be no "abortion," id. § 39-15-213(a)(1).
In sum, the Human Life Protection Act does not apply to a human embryo before it has
been transferred to a woman's uterus and, therefore, disposing of a human embryo that has not
been transferred to a woman's uterus is not punishable as a "criminal abortion" under the Act.
JONATHAN SKRMETTI
Attorney General and Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
GABRIEL KRIMM
Assistant Solicitor General
Requested by:
The Honorable Jack Johnson
Senate Majority Leader
702 Cordell Hull Building
Nashville, Tennessee 37243