Sunday, February 06, 2005
Illinois Judge Says: Parents of Discarded Embryo Can Sue for Wrongful Death 
by Lenka Reznicek [permalink] 
Let's look over the subject of my past few posts: eggs, technology, and political obstinacy. At first glance these disparate topics seem to have little in common, yet as often happens, a strange synchronicity reveals itself.

Friday, a Cook County, Illinois judge gave a couple permission to sue their fertility clinic under the state's wrongful death law, because the clinic accidentally discarded their frozen fertilized embryos:
CNN [AP] In an opinion issued Friday, Cook County Judge Jeffrey Lawrence said "a pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb."

He said the couple is as entitled to seek compensation as any parents whose child has been killed.

The suit was filed by Alison Miller and Todd Parrish, who stored nine embryos in January 2000 at the Center for Human Reproduction in Chicago. Their doctor said one embryo looked particularly promising, but the Chicago couple were told six months later the embryos had been accidentally discarded.

In his ruling, Lawrence relied on the state's Wrongful Death Act, which allows lawsuits to be filed if unborn fetuses are killed in an accident or assault. "The state of gestation or development of a human being" does not preclude taking legal action, the act says. Lawrence also cited an Illinois state law that says an "unborn child is a human being from the time of conception and is, therefore, a legal person."
I agree that the loss of the frozen embryos is a tragic disappointment for Miller and Parrish, but I don't think alleging "wrongful death" is the best remedy here. In fact, I think the parents stand more chance of losing this case, given the future ramifications. Not only does such a charge (warranted or not) set the stage for the inevitable sticky pro-life/pro-choice political maelstrom, but how do we assess and assign blame or responsibility for the life of the embryos? If we declare frozen embryos "children," what happens when the parents either do not use all the embryos, or later choose to discard some, as almost inevitably happens?

Embryonic viability decreases the longer the cells remain in cryogenic storage. If parents leave embryos frozen for decades or longer (obviously well past the time the biological parents would be able to use the embryos themselves) - would the parents be guilty of "murder," "abortion," "child abandonment," or perhaps "child neglect"? If, as Judge Lawrence states, an embryo is a child whether or not it is implanted in a womb, are parents of unused or discarded embryos "selectively aborting" their children? You can see how messy the issue will become when a charge of "wrongful death" lodged, rather than seeking financial compensation for negligence - or even medical malpractice.

To complicate matters, when Judge Lawrence stated that "the couple is as entitled to seek compensation as any parents whose child has been killed," does this place fertility clinics in the legally tenuous position of being "childrens'" guardians?