Are Frozen Embryos ‘Living Persons’? Couple In UH Fertility Case Seeks Appellate Court Ruling Based On Modern Science

By James F. McCarty
The Plain Dealer, Cleveland

WWR Article Summary (tl;dr) More than 900 families lost 4,000 eggs and embryos last year after a sudden rise in temperature in a storage freezer at a fertility clinic in Ohio. The 8th Ohio District Court of Appeals is now deciding whether those embryos were living persons, not pieces of property.


Forty-six years after the landmark Roe vs. Wade court decision, advances in biomedical science and in vitro technology have had an impact on how many view the legal status of frozen embryos.

A Broadview Heights couple who lost three frozen embryos a year ago after a freezer malfunction at University Hospitals’ Ahuja Medical Center, are hoping those evolving opinions on the topic will help to convince the 8th Ohio District Court of Appeals that their embryos were living persons, not pieces of property.

Wendy and Rick Penniman were among the more than 900 families who lost 4,000 eggs and embryos March 3-4 after a sudden rise in temperature in a storage freezer at the fertility clinic in Beachwood.

The majority of the 80 plaintiffs who sued the hospital are pursuing negligence or medical malpractice cases in Cuyahoga County Common Pleas Court. But the Pennimans have taken a different course of action since a judge dismissed their case in May.

On March 20, Bruce Taubman, the attorney for the Pennimans, will deliver oral arguments to a three-judge appellate panel. He plans to rely heavily on a law review article penned last year by Professor Rita Lowery Gitchell in the DePaul University Journal of Health Care Law.

The 88-page treatise presents the scope of embryo case law on the subject in the years since Roe vs. Wade gave women the right to an abortion. In its decision, the U.S. Supreme Court stated that a fetus was not a person and it did not know when life began, but that it wasn’t necessary to speculate to reach its decision.

“It’s going to be a scientific approach,” Taubman said, foreshadowing his oral arguments. “This law review article provides a nice synopsis of the existing case law. In Roe vs. Wade, the court didn’t have the expertise to determine when life begins.”

Taubman agrees with the author, who asserts in her article that all of the court cases involving embryos in the ensuing years have been flawed, based on archaic science and invalidated theories, and should be rejected.

“It is time to re-examine scientific facts of human development based on the current scientific knowledge,” Gitchell writes. “The law should protect human beings equally, whether in vitro (in glass) or in vivo (in utero).
In both cases the law must realize that it is dealing with human beings.”

The paper makes the claim that the question of when human life begins is no longer a mystery but is an observable fact. Scientists in 2008 were able to use time lapse micro-photography to observe all 23 stages of embryonic development in 100 single-cell embryos that had been fertilized and frozen six years before, the author states.

The paper cites several other like-minded doctors and scientists, including Dr. Maureen Condic, a Berkeley neurobiologist, who asserts that human life begins at fertilization. She has testified as an expert at trial that the youngest one-cell embryo, known as a zygote, has all the properties of a complete human being at an immature stage of development.

“The conclusion that a human zygote is a human being is not a matter of religious belief, societal convention or emotional reaction,” Condic testified. “It is a matter of observable, objective fact.”

When deciding cases involving the loss of frozen embryos, courts continue to rely on legal precedent based on erroneous scientific concepts, Gitchell wrote.

“The time has come for courts to determine the fate of cryopreserved embryos based on the scientific truth that they are human organisms, existing human life, entitled to basic human rights,” Gitchell concludes in her report. “They’re not some form of property, not mere human tissue with only a potential for life.”

In response, attorneys for UH cite an Ohio law that states “an unborn child is not a person … unless the child could live outside the womb. A cryopreserved embryo frozen at minus 160 degrees centigrade in a cryotank cannot live outside the womb.”

The hospital’s legal team contends that Judge Stuart Friedman was correct when he dismissed the Pennimans’ lawsuit in May, ruling that the courts “can only deal with rights and obligations that the law recognizes, not with emotions, feelings or beliefs of individuals.”

Browne Lewis, a professor at Cleveland-Marshall College of Law, where she is director of the Center for Health Law & Policy, said the law is on the side of UH.

“You can’t let emotion and public outrage force you to create bad law,” Lewis said. “But if we say an embryo is a person, and that UH accidently killed these embryos, they could be charged with negligent homicide.

“That’s the problem I think the 8th District is going to have,” Lewis said. “Even the most conservative court in the country may say a fetus is a person, but I don’t think they’re going to say an embryo is a person.”

In her legal paper, Gitchell provides a chronological history of court cases dealing with the rights of embryos and in vitro fertilization lawsuits, beginning in 1978 when a jury in New York awarded a couple $50,000 after a doctor dumped a vial containing eggs and sperm, believing in vitro fertilization was unethical.

The seminal case of Davis vs. Davis involved an embryo custody dispute and is the only case in which a court ruled whether an embryo is a human being and deserving of legal protection, according to the Gitchell paper.

A trial court in Davis ruled that, indeed, embryos are human beings, but was reversed by an appellate court. The Tennessee Supreme Court declined to give human being status to embryos but gave them interim status, placing embryos somewhere between people and property, “due greater respect than any other human tissue because of its potential to become a person.”

The U.S. Supreme Court affirmed the Tennessee ruling in 1992. Nearly all subsequent embryo lawsuits have relied on the decision in whole or in part, which is unfortunate, Gitchell says, because it was based on scientifically invalid evidence.

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