MALFUNCTION OR MURDER?

Will Fertility Clinic Disaster Redefine Personhood?

By definition, the embryos are considered property, and legally referred to as ‘chattel.’ One couple suing an Ohio hospital doesn’t agree.

fertility clinic nitrogen failure ohio california penniman wendy embryo abortion roe v wade

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Freezer malfunctions at two fertility clinics at the end of March led to the loss of thousands of eggs and embryos, stored by people who had hopes of using them for future pregnancies, and future children. Dozens of lawsuits were filed in the past weeks, from people seeking some compensation for what they’ve lost.

On March 30, one of the couples bringing a class action lawsuit against the University Hospital system in Ohio, which ran one of the clinics with malfunctions, filed an additional complaint.

Wendy and Rick Penniman asked the court to declare that life begins at conception, and that for the purposes of the case, the embryos be given legal standing as persons.

Legal experts say that the complaint is unlikely to be successful. But if the court rules in the Pennimans’ favor, that decision might have implications for the fertility industry and for reproductive rights in the United States.

The Pennimans lost three embryos in the Ohio malfunction. Those embryos are considered property, and legally, they’re referred to by the defendant, the hospital, as “chattel.”

However, the Pennimans’ attorney wrote in the lawsuit, the couple consider life to begin at conception, and contend that the embryos weren’t just property at the hospital, but patients. The suit continued to state that the court should consider the embryos people under the law, so that the Pennimans can sue the hospital for wrongful death.

Roe v. Wade made it clear that an embryo or fetus is not a person under the protections of constitutional and federal law. Since then, no judges have suggested otherwise, Dov Fox, a law professor at the University of San Diego, told The Daily Beast.

That doesn’t mean that wrongful death claims cannot be filed on behalf of a fetus. In fact, in many states, they can. That doesn’t mean the fetus has legal standing as a person overall, but wrongful death can be brought on its behalf—“for lack of a better legal fiction,” Fox said.

Ohio is one of the states where it’s possible to bring a wrongful death suit on behalf of a fetus, Lucinda Finley, a professor at the University of Buffalo School of Law, said. However, a fetus is defined by Ohio law as a human offspring developing during pregnancy. “In this case there was a fertilized embryo, but not a pregnancy,” Finley pointed out.

That’s one reason it’s unlikely that the court will allow the Penniman complaint to move forward. “It’s a dramatic expansion of the existing law,” Finley said. In these types of cases, courts tend to stick to the laws and precedents already on the books in the state. There’s also no guarantee that a frozen embryo becomes a fetus; many end up not being viable, even when stored properly, and implantations can fail as well.

“A stored, fertilized embryo is a potential fetus, but it’s a long way from one, and I think the courts would recognize that,” Finley said.

Fox added that in similar cases dealing with the loss of embryos due to hospital or clinic in the past, the courts decide that an embryo is not a person for the purposes of wrongful death cases. He pointed to two cases where embryos were damaged—one in Arizona in 2005, and one in Illinois in 2008. Both held that the wrongful death statutes do not apply to the loss of an embryo that hasn’t yet been implanted in a womb.

A stored, fertilized embryo is a potential fetus, but it’s a long way from one, and I think the courts would recognize that.
Lucinda Finley, professor, University of Buffalo School of Law
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Therefore, it would be surprising if the Ohio court ruled differently. “It would fly in the face of all existing legal precedent,” Fox said.

But on the outside chance that the Penniman request to have the embryos considered as persons did go forward, it could have implications for the fertility industry and reproductive rights overall, both attorneys say. If embryos are considered people, and wrongful death claims can move forward on their behalf, people looking to store embryos might face additional obligations toward any extras they might have.

“Are you now obligated to care for those, and make sure they’re never destroyed?” Khiara Bridges, a professor at the Boston University School of Law, said. “It becomes more onerous. As opposed to rejoicing after becoming parents, you now have to worry about ongoing financial and moral obligations towards the other embryos.”

And that would mean groups looking to limit abortion would certainly use a decision calling embryos people to back their agenda. “They might try to limit abortion in new ways, or gain protections for the unborn in new ways,” Fox said.

The implications of an affirmative decision in this case may not stretch outside of the bounds of this particular lawsuit, according to Bridges. The law is capable of saying that an entity is a person in one arena but not in another, she said. “It might be that the embryo is only a person in cases where IVF companies have negligently caused the destruction of an embryo,” she said. “But it’s still precedent, and it could be persuasive in other situations.”

One of the reasons that cases like that of the Pennimans come up in the first place is that the law doesn’t have a good way to discuss reproductive material. “They weren’t just cells and tissues, and they weren’t already born people, but that doesn’t mean that they were nothing,” Fox said. “There ought to be a way to right these wrongs under the law that doesn’t require mischaracterizing a frozen embryo as either a person, or property.”

Faced with the destruction of an embryo, some people might experience that loss as the loss of a child. The law, though, doesn’t recognize that nuance, Fox said.

In their search for justice after such a loss, people may want the law to reflect that that, to them, the embryo was more than “chattel,” Finley said.

“I think there can be a valid philosophical or societal point that this thing that was damaged here is more important than other types of things the law considers property,” Finley said. “But you can make that claim without the law having to call it a person.”