fertalized embreyos in clinics ruled as human

By Rob Olmstead Daily Herald Staff Writer

A Cook County Circuit Court Judge has ruled that the parents of unimplanted embryos can sue their fertility clinic under the Wrongful Death Act after the clinic accidentally destroyed the embryos.



In an 11-page opinion, Judge Jeffrey Lawrence ruled Friday that "a pre-embryo (a fertilized egg that hasn't yet been implanted) is a 'human being' within the ... Wrongful Death Act and that a claim lies for its wrongful destruction whether or not it is implanted in its mother's womb."


Lawrence made his ruling, he said, based on Illinois abortion law and the state's Wrongful Death Act.


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


One legal expert on in vitro fertilization said he thought the ruling was narrowly tailored enough that it would not have much of an effect on abortion law, but that it would be huge for the burgeoning in vitro industry.


"There are hundreds of thousands of embryos frozen in clinics," said John Mayoue, an Atlanta family attorney who has written extensively on in vitro law and ethics. "Are we then going to elevate those clinics to the status of an orphanage?


"If I'm a person who owns an IVF clinic, I don't want to be storing or be responsible for the continuation of this life form. What kind of insurance rates would you have?"


He did think, however, that activists on various sides of the abortion and stem cell research debate would try to use the ruling to fit their purposes.


The suit arose after a Chicago husband and wife, Alison Miller and Todd Parrish, had nine embryos harvested and stored in January 2000 at the Center for Human Reproduction in Chicago. When the couple called the clinic in June to have the embryos transferred to another clinic, they were told they had been destroyed.


"Considering this very obvious error ... we would be willing to offer you a free IVF cycle at CHR (excluding medications) at any time," wrote Dr. Norbert Gleicher to the couple.


"Somebody just threw out the stuff," said James Costello, an Arlington Heights attorney and lawyer for Miller and Parrish. "They were shocked, of course, when it happened.


"The issue becomes 'what do you do now?'" Costello said. "It certainly is something more than somebody throwing out some tissue."


Costello and his partner, Paul McMahon, sued under the Wrongful Death Act, but Cook County Judge David G. Lichtenstein threw out the wrongful death counts. A later judge in the case refused to reconsider that ruling. But when Lawrence came on to the case, he reversed the earlier judges, noting that they hadn't explained their decisions.


"As one appellate court has put the matter, everyone, including litigants, attorneys, the public and 'legal history in general' is entitled to know why a court does what it does," Lawrence wrote.


Costello said he did not know his clients' feelings on abortion, but noted that was not their motivation in filing the suit.


"They're interested in being parents. They couldn't care less about Roe v. Wade (news - web sites)," he said.


Brian Schroeder, an attorney for the clinic, said an appeal was likely.





"We're disappointed with the ruling," he said. He also noted that the clinic has since been sold to another company and the current owners had nothing to do with the case.

In making his ruling, Lawrence noted that he was guided by a 1980 amendment of the Wrongful Death Act which sought to allow mothers to sue if their unborn babies were killed in an attack or accident. The law specifically exempted consensual abortions.

Former Illinois state Sen. Mark Rhoads of Western Springs led the writing of the amendment, and in an interview Friday he noted it was in no way intended to apply to in vitro procedures - something Lawrence acknowledged in his ruling.

"I don't even know what the state of frozen embryos was back in 1980" said Rhoads, who now lives in Virginia.

But Rhoads, who read the decision after the Daily Herald faxed it to him, said the judge did a good job of making the most reasonable extrapolation from the law as it was written.

The law says, "The state of gestation or development of a human being ... shall not foreclose maintenance of any cause of action" under the Wrongful Death Act.

Mayoue noted that the courts have often produced conflicting rulings on the status of embryos.

"We are considering embryos to be property for certain purposes and life for others. And that's the incongruity," he said.

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Birdjaguar said:

I guess ybbor had no point to his post. We're supposed to read it and be amazed or converted or something.

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ybbor said:

people post news on this forum. this is news. sorry for posting something i thought some people might find interesting.

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Birdjaguar said:

Given your religious views, I expected a little commentary or opinion from you. He's just a judge so it's his best guess at defining what is human. I'd argue with him if he posted here.

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ybbor said:

so now i did something wrong by not trying to put a spin on it? wow, you sure are agumentative

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FearlessLeader2 said:

Actually, RvW made no commentary whatsoever on the status of the fetus, other than to comment that it was not going to try to do so. It makes its ruling exclusively based on privacy laws.

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cgannon64 said:

After all, you can't really have an abortion law on the books without deciding definitively what a fetus is.

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cgannon64 said:

We have, but then its a bad law.

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cgannon64 said:

Its not that its a bad law because it pleases no one.

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cgannon64 said:

I'd say its a bad law because any law concerning abortion cannot skate around the issue of what a fetus is without being a sham. A fetus is human or it is not. That is central to the debate, and a law that avoids that question is going on false pretenses.

(What I mean is that, Roe v. Wade apparently - I'm making a resolution to read it - says that a woman has the right to abort her fetus because it is her private body, and her choice what to do with it. That is essientially saying that the fetus is not a seperate being, but a part of her. But, the law does not say that. It avoids the topic of the fetus altogether. And, to make it a good law, it should at least state what it is implying: that a fetus is non-human.)

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cgannon64 said:

Its not that its a bad law because it pleases no one. I'd say its a bad law because any law concerning abortion cannot skate around the issue of what a fetus is without being a sham. A fetus is human or it is not. That is central to the debate, and a law that avoids that question is going on false pretenses.

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