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
Tennessee fertility clinics
Routine IVF embryo disposal is not "criminal abortion" under § 39-15-213. The AG's text-based reading is straightforward and unlikely to be litigated successfully against a clinic acting in good faith reliance on it. Practical steps:
- Document patient consent for embryo disposition at the start of every IVF cycle. Clinics already do this; the AG opinion is one more reason to keep that paperwork tight.
- Don't conflate disposal of in-vitro embryos with selective reduction in a pregnant patient. The latter (reducing a multiple gestation in a woman who is pregnant) is what § 39-15-213 actually addresses. The clinical practice is different and the legal status is different.
- Be aware of other Tennessee laws. This opinion only addresses § 39-15-213. Tennessee has other statutes and regulations governing embryo research, donation, and disposition. Confirm separately that your protocols comply.
- Watch for legislative changes. The AG's reading is constrained by the current statutory text. The legislature could amend the Act to cover in-vitro embryos. Monitor Tennessee bills in the 2026 and later sessions.
IVF patients in Tennessee
If you are pursuing IVF and your clinic offers options for unused embryos (discard, donate to research, donate to another couple, indefinite freezing), the AG opinion confirms that the disposal options are not criminal under Tennessee's abortion statute. Continue to make your decision based on your own values and your clinic's medical advice. Get clear paperwork on which option applies to your remaining embryos.
Reproductive-healthcare attorneys
The AG opinion is the canonical Tennessee reading of § 39-15-213's territorial limit. Use it to advise:
- Fertility clinics on routine embryo-disposition protocols.
- Couples in custody disputes over frozen embryos: the criminal-abortion statute is not in play; family law and contract law (the original IVF consents) control.
- Healthcare-system general counsel on the boundary between OBGYN abortion-statute risk and IVF-clinic risk.
The opinion also signals that the AG's office reads § 39-15-213 textually rather than expansively. That matters for adjacent questions about ectopic-pregnancy management, miscarriage care, and selective reduction.
Prosecutors and law-enforcement
Routine IVF embryo disposal does not constitute "criminal abortion" under § 39-15-213. A prosecution against a fertility clinic for discarding an in-vitro embryo would fail at the elements stage. Your enforcement focus under § 39-15-213 should be on actual abortion procedures (terminating pregnancies in women's bodies).
OBGYN practices that don't perform IVF
The opinion is most directly relevant to fertility clinics, but OBGYN practices that handle pregnancy losses, ectopic pregnancies, miscarriage management, and selective reduction should be aware that the AG's reading is text-bound. The Act applies to terminating "the pregnancy of a woman known to be pregnant." The defenses in § 39-15-213(c) (medical necessity and others) operate within that framework.
State legislators considering amendments
The opinion implicitly tells the legislature: if you want § 39-15-213 to reach in-vitro embryos, you must amend the text. The current statute is bound by the "within her body" / "pregnant" language. The 2024 Alabama Supreme Court decision in LePage v. Center for Reproductive Medicine sparked legislative interest in defining embryo status under various state laws; Tennessee legislators considering a similar question should know that the current Human Life Protection Act doesn't cover in-vitro embryos.
Bioethics researchers and academics
The opinion is a clean illustration of textualist statutory interpretation in the post-Dobbs state-law landscape. It confirms that "person" definitions and "unborn child" definitions in criminal abortion statutes don't automatically extend to in-vitro embryos absent express statutory language. The Tennessee AG's office (under General Skrmetti, who is a textualist) handled this in two pages. The reasoning generalizes to similar statutes in other states.
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?
Selective reduction (reducing a multifetal pregnancy in utero) is a different procedure. The pregnancy exists in a woman's body, the procedure terminates one or more of the fetuses, and the Act would apply (subject to whatever defenses or exceptions exist in § 39-15-213(c) for the patient and physician). The AG opinion is silent on selective reduction; consult counsel for the specific procedure and clinical context.
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