Judge rules couple can sue for wrongful death over discarded frozen embryo

The Associated Press
February 5, 2005

CHICAGO -  A couple whose frozen embryo was accidentally destroyed at a fertility clinic has the right to file a wrongful death lawsuit, a Cook County judge has ruled, in a case that legal experts say could have implications in the national debate over embryonic stem cell research.

In an 11-page opinion Friday, Judge Jeffrey Lawrence said “a pre-embryo is a ‘human being’ … whether or not it is implanted in its mother’s womb.” Lawrence said the couple is entitled to seek compensation as would any parent whose child has been killed.

The suit was filed by Alison Miller and Todd Parrish, who harvested and 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 was 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 babies 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 Illinois state law, which states “the unborn child is a human being from the time of conception and is, therefore, a legal person.”

“There is no doubt in the mind of the Illinois Legislature when life begins,” Lawrence wrote. “It begins at conception.”

The decision could curb reproductive research, said Colleen Connell, executive director of the American Civil Liberties Union in Chicago. She expects the ruling to be overturned on appeal.

“It may be groundbreaking, but it’s the wrong decision,” Connell said. “No appellate court has ever declared a fertilized egg a human being in a wrongful-death suit.”

Stem cells can potentially grow into any type of human tissue. Many scientists believe they could someday be used to repair spinal cord injuries and treat various diseases. But anti-abortion groups oppose research because it involves destroying embryos. The Bush administration has severely restricted federal stem cell funding.

Anti-abortion groups supporters praised Lawrence’s ruling.

“That’s scientifically correct: Life begins at fertilization, not implantation,” Pro-Life Action League director Joe Scheidler said.

While the ruling likely is too narrow to effect abortion law, it increases legal risks for fertility clinics, said John Mayoue, an Atlanta family attorney and specialist on in-vitro law.

Mayoue added that court rulings on the treatment of embryos have been contradictory.

“We are considering embryos to be property for certain purposes and life for others, and that’s the incongruity,” he said.

A judge previously threw out the couple’s wrongful death claims, but Lawrence reversed that decision, partly because the judge did not explain his decision at the time.

An attorney for the fertility clinic said an appeal would likely be filed.

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