In a case that spotlights Alabama’s state policy recognizing “the rights of unborn children,” a judge is deciding whether to dismiss a wrongful death lawsuit filed by the father of an aborted embryo against the clinic where his ex-girlfriend obtained an abortion.

WHNT-TV reports Madison County District Judge Chris Comer heard arguments in Ryan Magers' lawsuit during a hearing Wednesday but did not rule.

Magers is serving as representative of the aborted embryo's estate in the lawsuit against the Alabama Women's Center in Huntsville. A probate judge earlier this year took the unusual step of opening an estate for the aborted embryo, known as "Baby Roe" in court filings, after Magers' attorney cited a newly approved Alabama constitutional amendment saying its state policy to recognize the "rights of unborn children."

A lawyer for the clinic told the judge Wednesday that there is no wrongful death because abortion is legal. The clinic has asked the judge to dismiss the case.

"The bottom line here is that this is a simple case. They have sued for the wrongful death of an embryo and at the time that that happened abortion was legal in Alabama and still is," said Sara Tucker, an attorney representing the clinic.

Magers and his then-girlfriend were both teenagers when she got pregnant in 2017. The suit says Magers pleaded with the young woman not to have an abortion but she did so anyway. The suit names the clinic where Magers contends his former girlfriend received an abortion-inducting medication when she was six weeks pregnant.

Magers' attorney, Brent Helms, said, "there's never been a case like this in the United States of America."

"For the first time in the history of America the aborted child has been able to move forward with this case," Helms said.

In court filings, Helm's cited the constitutional amendment that Alabama recognizes the rights of the "unborn" and the state's recent attempt to ban abortions.

Helms said, "the state of Alabama recognized that Baby Roe is a person."

Comer told the parties in court that regardless of what he decides he expects his decision will be appealed.