Should courts treat destroyed embryos as “lost property” or “wrongful death”?

Bill of Health contributors Glenn Cohen and Dov Fox were featured in this week’s news coverage of novel claims related to recent freezer malfunctions at two major fertility clinics. A class-action suit by one Ohio couple who lost their embryos asks the court to afford embryos standing to use and declare that life begins at conception.Friday’s article asks: “Will Fertility Clinic Disaster Redefine Personhood?” From the piece:

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 [Supreme Court] ju[stices] 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 [or that] 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.

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. Therefore, it would be surprising if the Ohio court ruled differently. “It would fly in the face of all existing legal precedent,” Fox said.

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.

The Atlantic wondered last week, “Can Lost Embryos Give Rise to a Wrongful-Death Suit?” The magazine called on Glenn Cohen to weigh in:

If—and that’s a big if—an embryo is deemed a person, then it could very well alter the practices of in-vitro fertilization clinics, which routinely create more embryos than are implanted into patients. And it will almost certainly alter the landscape of abortion politics. The filing cites a 1985 Ohio Supreme Court case, Werling v. Sandy, that held a viable fetus is a person. But I. Glenn Cohen, a professor at Harvard Law School, says that case may not be the most relevant one here. A viable fetus is one that can survive outside of a womb. And in Egan v. Smith, an Ohio Court of Appeals court held in 1993 that wrongful death could not be brought for a nonviable fetus. This case is more likely to apply to embryos. “It’s a real stretch,” he says, “but lawyers are supposed to give every argument they can.”

When the personhood filing came out, the pro-life, antiabortion website jumped on the news by reprinting an article from the Society for the Protection of Unborn Children, “Thousands of Unique Human Beings Die After Fertility Clinic Has Storage Tank Malfunction.” Cohen, the Harvard law professor, added that deeming embryos people could have huge implications for the IVF industry. Clinics routinely create extra embryos because not every embryo that is implanted will result in a pregnancy. What will happen to those extra embryos if they are persons? And perhaps more importantly, did those embryos that did not result in a pregnancy die? It could have a huge chilling effect on the IVF industry.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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