US couple to sue for 'wrongful death' of embryo

Dr. Kirsty Horsey

Progress Educational Trust

12 February 2005

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[BioNews, London] A court in Illinois, US, has ruled that a couple can take a 'wrongful death' action over an IVF embryo that was accidentally discarded at a fertility clinic. Alison Miller and Todd Parrish were undergoing treatment at the Centre for Human Reproduction in Chicago in 2002, and had stored nine embryos at the clinic. When the couple asked to use one of the embryos, the clinic told them it had been 'mistakenly' discarded, apologised for the error, and offered the couple a free additional cycle of IVF.

The couple decided to sue for damages for 'wrongful death' in 2002, but judges in two hearings rejected their claim. Now, Judge Jeffrey Lawrence, of Cook County, Illinois has ruled that they do have a claim. His ruling said that the state's Wrongful Death Act, which makes it a crime if a fetus is killed in an assault or accident, is designed to protect the 'gestation or development of a human being'. Another state law, he said, says that an 'unborn child is a human being from the time of conception and is, therefore, a legal person'. As a result of the combination of these laws, he ruled that the accidental disposal (and therefore destruction) of an embryo from a fertility clinic would give the parents the right to claim for wrongful death.

Some legal experts have criticised Judge Lawrence's ruling, saying that it misrepresents the intention of the state's laws and relies on language that has been invalidated by later legislation. Colleen Connell, executive director of the American Civil Liberties Union of Illinois, pointed out that the definition of a fetus as a human being 'from conception' was overruled by legislation allowing abortion, and 'declared unconstitutional and unenforceable'. She also pointed out that, if the latest ruling was to be upheld, it would 'frustrate' the future of fertility services and also hinder embryonic stem (ES) cell research in the state. 'The problems with defining a pre-implantation egg as a human being are monumental', she said, adding 'suddenly, anyone who damaged a fertilised egg would be open to a wrongful death suit'. Illinois is one of a number of states that has put forward a bill to provide state funding for ES cell research, in the wake of the Californian vote that established the state as the first to publicly fund ES cell research.

Other legal experts - including some pro-life lawyers - have said that there is a 'very good chance' that the latest ruling will be overturned on appeal, once the state's Appellate or Supreme Courts become involved. Brian Schroeder, a spokesman for the Chicago fertility clinic said that an appeal is likely to be filed. 'We're disappointed with the ruling', he said.

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.