Can Lost Embryos Give Rise to a Wrongful-Death Suit?

Over a single weekend in March, an unprecedented disaster hit fertility clinics—twice.

First came the news that the University Hospitals Fertility Center in Ohio, lost more than 4,000 eggs and embryos in a malfunctioning cryogenic tank. Then, in an unrelated incident, Pacific Fertility Center in California reported that liquid-nitrogen levels had fallen too low in a tank holding “several thousand” eggs and embryos, affecting an unconfirmed number.

In-vitro fertilization can be a draining process—financially, physically, emotionally. And for some families, these embryos had been their last chance to have biological children. Dozens of lawsuits have since been filed; parents and would-be parents spoke of the children they will never have, of the siblings their children will never know. At times, they spoke not just of “embryos” but of “babies.”

“How many babies are at risk right now while we sit, while we talk?” asked Wendy Penniman, who lost embryos in the malfunctioning Ohio tank, on the Today show.

On Friday, as first reported by Courthouse News, Penniman’s lawyer, Bruce Taubman, filed a complaint asking the court to consider an embryo a person. The filing—which comes in addition to a class-action lawsuit already filed March 12 on behalf of Penniman and her husband, Rick—asks for a declaratory judgment that “the life of a person begins at the moment of conception” and “the legal status of an embryo is that of a person.”

Taubman says that he filed the complaint to “unclog the logjam” of dozens of related fertility-clinic cases in Ohio. If embryos were declared people, he noted, then a wrongful-death claim could also come into play. “The damages are much more severe ... There is no cap on damages,” he says.

Encapsulated in this legal strategy is a lightning rod of a question. If—and that’s a big if—an embryo is deemed a person, then it could very well alter the practices of in-vitro fertilization clinics, which routinely create more embryos than are implanted into patients. And it will almost certainly alter the landscape of abortion politics.

The filing cites a 1985 Ohio Supreme Court case, Werling v. Sandy, that held a viable fetus is a person. But I. Glenn Cohen, a professor at Harvard Law School, says that case may not be the most relevant one here. A viable fetus is one that can survive outside of a womb. And in Egan v. Smith, an Ohio Court of Appeals court held in 1993 that wrongful death could not be brought for a nonviable fetus. This case is more likely to apply to embryos. “It’s a real stretch,” he says, “but lawyers are supposed to give every argument they can.”

Nevertheless, the rising popularity of IVF has opened real questions over how to treat embryos. This has come up in disputes, like when the actress Sofía Vergara was sued by two frozen embryos created with her ex, who wanted to implant them in a surrogate mother. That case was brought in Louisiana, which deems embryos neither property nor humans but “juridical persons,” an entity with legal rights. (The case was ultimately dismissed.)

This issue also comes up in more prosaic scenarios, like when a family is deciding what to do with extra embryos from IVF. Some donate them to research. Others dispose of them, sometimes through a ceremony. Often, they simply decide to keep the embryos in storage. “Couples don’t always agree about the moral and legal status of the embryo, where life begins, and how religion enters into it, and a lot of them end up kicking the can down the road,” a fertility doctor told The New York Times in 2015. There are no exact numbers, but as many as a million embryos may be in indefinite frozen storage.

Christian organizations have advocated “snowflake adoptions,” in which a family adopts another’s extra embryos. Last fall, one such adoption resulted in the birth of a baby girl from an embryo frozen for 24 years, nearly as long as her 26-year-old adoptive mother had been alive.

The Penniman’s lawsuit appears to be the only so far to have broached the subject of personhood. Another attorney, Tom Merriman, who says his firm is representing more than 100 clients against UH Fertility Center now, is not pursuing this legal strategy. “An embryo—whatever your personal moral or religious belief about the status of embryos—it’s something that’s created with tremendous personal sacrifice. It is unique, and it has value far greater than something like your car or your TV,” he says. But personhood adds a partisan dimension to the cases. “I hate to see these cases get politicized and transformed into some partisan debate on a hot-button issue,” he adds.

When the personhood filing came out, the pro-life, antiabortion website LifeNews.com jumped on the news by reprinting an article from the Society for the Protection of Unborn Children, “Thousands of Unique Human Beings Die After Fertility Clinic Has Storage Tank Malfunction.”

Cohen, the Harvard law professor, added that deeming embryos people could have huge implications for the IVF industry. Clinics routinely create extra embryos because not every embryo that is implanted will result in a pregnancy. What will happen to those extra embryos if they are persons? And perhaps more importantly, did those embryos that did not result in a pregnancy die? It could have a huge chilling effect on the IVF industry.

I put this scenario to Taubman, the lawyer who wrote the personhood filing. “That’s a good question. I don’t have an answer to for that. We’ll leave the court to decide about that,” he replied, with a long pause. “That’s a good question.”