Judge Rules Embryos Human Beings

February 5, 2005

Parents can sue for wrongful-death of frozen embryo

A frozen embryo destroyed in a Chicago fertility clinic was a human being
whose parents are entitled to file a wrongful-death lawsuit, a Cook County
judge ruled Friday.

Attorneys on both sides of the abortion issue said it was the first such
ruling they had heard of as the country debates whether stem cells derived
from embryos can be used in research and medicine.

Alison Miller and Todd Parrish hoped to conceive a child with help from the
Center for Human Reproduction, but the one fertilized egg the couple created
was thrown out "in error" by a clinic worker.

Friday, Judge Jeffrey Lawrence II said "a pre-embryo is a 'human being' ...
whether or not it is implanted in its mother's womb" and the couple is
entitled to seek the same compensation awarded to other parents whose
children are killed.

"Philosophers and theologians may debate," he wrote, "but there is no doubt
in the mind of the Illinois Legislature when life begins. It begins at
conception."

James Kopriva, attorney for the fertility clinic, declined to comment,
saying they were weighing their options.

Colleen Connell, executive director of the American Civil Liberties Union in
Chicago, said she expected the ruling would be overturned on appeal.

"It may be groundbreaking, but it's the wrong decision," Connell said,
predicting the ruling could chill doctors' interest in reproductive
medicine. "No appellate court has ever declared a fertilized egg a human
being in a wrongful-death suit."

Northwestern University law professor Victor Rosenblum, an abortion
opponent, said he admired the judge's ruling but expected that the appellate
and state Supreme Court would want to weigh in. "This is the first case I've
heard of like this."

Pro-Life Action League director Joe Scheidler praised the ruling. "That's
scientifically correct: Life begins at fertilization, not implantation."

Northwestern University law professor Dorothy Roberts said the ruling has
"dangerous" and "scary" implications for the law.

Courts have upheld statutes that allow homicide charges when fetuses are
killed along with their mothers but have not extended the same legal status
to unimplanted embryos, the experts said.

James Costello, who represented the couple with Paul McMahon, said the
clinic worker's negligence is now at issue, given the ruling.

"This couple was trying to have children," he said. "They had nine
blastocysts, the doctor said one looked great. So it was frozen and they
came back later to have it unfrozen, when they were told, 'Whoops -- we made
a clerical mistake and threw it in the garbage.'"

The embryo "had a unique set of DNA" not unlike a child "and was just thrown
out like a piece of garbage," he said.

The couple had sought fertility help in 2000. Parts of their case were
thrown out last year, but the courts allowed them to request a new hearing
on the issue of a wrongful-death case.

While the state's definitions of when life begins provided the basis for
their case, they also relied on a pair of memos from clinic chairman Dr.
Norbert Gleicher.

Gleicher says he was "extremely sorry" for "this very obvious error" caused
by a "communication mix-up," finishing with an "offer of a free [in vitro
fertilization] cycle as a gesture of goodwill on our part."

He said those responsible no longer work for the clinic: One left to work
for a different Chicago fertility clinic, and another left to spend more
time with her children.

Connell and Roberts said the couple should be able to sue for their loss,
but under a tort or breach-of-contract claim, not a wrongful-death action.