Illinois judge allows suit over destroyed embryo

A court rules that state law declares life to begin at conception, so the case could go forward under the state's Wrongful Death Act.

By Andis Robeznieks — Posted Feb. 28, 2005

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Observers are waiting to see whether a local court case in Illinois will merely settle a dispute between a couple and a fertility clinic, or if it will have a far-reaching impact on assisted reproduction, embryonic stem cell research and even abortion.

Cook County Circuit Judge Jeffrey Lawrence Jr. ruled Feb. 4 that a pre-implanted embryo was, in fact, a human being, so a wrongful death suit filed against a Chicago fertility clinic could go forward.

Alison Miller and Todd Parrish allege that at least one of their embryos created by the Center for Human Reproduction was wrongfully destroyed on Jan. 13, 2000. Judge Lawrence cited the Illinois Wrongful Death Act of 1980 -- which specifically exempts physicians performing abortions -- as the basis for his ruling.

"Philosophers and theologians may debate, but there is no doubt in the mind of the Illinois Legislature when life begins," the judge wrote. "It begins at conception. ... This court has no hesitation in ruling that a pre-embryo is a 'human being.' "

Center for Human Reproduction attorney James Kopriva did not comment beyond saying that he disagrees with the judge's ruling and that his clients are weighing their options before deciding what to do next.

Robert Schenken, MD, president of the American Society for Reproductive Medicine, said his group might file an amicus brief if the decision is not overturned. "It could have a monumental effect on in vitro fertilization clinics if the fertilized egg and embryo are considered human beings. I think everyone is looking at it with great concern. The other issue is that it would essentially end embryonic stem cell research in the state of Illinois."

He also predicted that Illinois clinics could change their policies on disposing of embryos. "Under this ruling, no one would dispose of any -- even if the couple requested it," he said. "I don't think any physician would want to assume that type of liability."

The attorney for Miller and Parrish, James P. Costello, praised the judge's ruling but downplayed its significance. "It's not a Roe v. Wade case, it's one decision based on one law," Costello said. "This will have applications only to Illinois and only to wrongful death cases with [embryos] that could be viable, and that's it."

He said the federal government allows embryonic stem cell research, so actions of a state court couldn't stop it. "If federal law says it's so, it doesn't matter what the states say," Costello said. "I'm very concerned with people freaking out." But he added that "there isn't a lot of law on this."

Attorney and bioethicist M.C. Sullivan, RN, agreed. "What is getting highlighted is the lack of consistency in dealing with fertility clinics," said Sullivan, executive vice president of the Center for Practical Bioethics in Kansas City, Mo. "Folks do what they want to do; there is no regulation."

Sullivan predicted that legal definitions of life will become even more complicated as medicine "gets better and better at saving smaller and smaller fetuses earlier and earlier."

Jeffrey Keenan, MD, medical director of the Southeastern Fertility Center in Knoxville, Tenn., agrees with the judge that pre-implanted embryos are human beings. But he said this concept is contradicted by other laws, and that life is so fragile at the embryo and blastocyst stage that wrongful deaths suits might be unfair and unrealistic for reproductive medicine.

"The embryo is human life," said Dr. Keenan, who is also director of the National Embryo Donation Center. "On the other hand, I do think it's a very difficult position to put physicians or fertility clinics in because, if you're working on an embryo, the slightest tremor in your hand could destroy it."

He added that the chances an embryo will develop into a child run between 70% and 1%. "Should you really be able to be sued for wrongful death when the chances of a birth are -- more often than not -- unlikely to occur?" he asked.

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