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Implications from egg destruction a legal wake-up call

On Behalf of | Nov 27, 2018 | Assisted Reproduction

A lawsuit that resulted from the inadvertent destruction of more than 4,000 frozen eggs and embryos is causing legal repercussions far beyond the immediate aftermath of the incident.

Last March, a storage tank malfunctioned at the University Hospitals Fertility Center in Cleveland, destroying the saved eggs and embryos of 950 patients. Several weeks later, Wendy and Rick Penniman sued to challenge Ohio’s legal precedent that a fetus that is not yet viable is not a person under the wrongful death law.

The suit has obvious implications in the contentious abortion debate. At the center is whether life begins at conception or if it begins when the fetus is viable.

The future of in-vitro fertilization

But the suit has implications beyond the abortion debate, argues three co-authors in an article published in “Annals of Internal Medicine.” The authors — Eli Adashi of Brown University, Glenn Cohen of Harvard University and Dov Fox at the University of San Diego – say a ruling could affect stem cell research and the future of in-vitro fertilization.

First, they note no federal agency regulates cryogenic tanks that store reproductive materials. The Food and Drug Administration doesn’t regulate liquid nitrogen freezers because they are not marketed as medical devices.

They also note that while fertility clinics have been sued for breach of contract if embryos are inadvertently destroyed, most clinics require patients to sign waivers against liability for storage failures. A ruling that life begins at conception would negate such a contract.

The authors suggest that while patients could sue clinics for loss of property, courts have so far resisted considering frozen embryos as property just as they have resisted trying to put a value on what was lost when embryos were destroyed. Courts have also refused in numerous cases to date to determine that frozen embryos are persons.

The authors also consider lawsuits that claim medical malpractice an infliction of emotional distress. This tactic seems doomed, they argue, because the patients didn’t witness the destruction of the embryos, and the embryos aren’t considered “people” for the purposes of this law.

Suing for wrongful death

That’s why the Pennimans have sued claiming wrongful death, claiming the embryos as people and that they are survivors of negligence that lead to the deaths of their loved ones. (But see Jeter v. Mayo Clinic Arizona in which plaintiffs’ wrongful death claim based on a clinic’s negligent destruction of their embryos was dismissed.)

The authors say that such a ruling would affect not only abortions, but also stem-cell research and in-vitro fertilization.

They suggest that state legislatures take up the call to establish personhood, a move the Ohio House of Representatives is considering in House Bill 565. That bill suggests changing the definition of “person” to “any unborn human”. The bill is sponsored by 14 men and two women, all Republicans. Ohio Gov. John Kasich has vowed to veto the bill if it gets to his desk, just has he has vowed to veto the “heartbeat bill” passed by the Ohio House earlier in November that would ban abortions when a fetal heartbeat is detected.