Last March, 4,000 frozen eggs and embryos were lost at University Hospitals Fertility Center in Cleveland when the temperature in cryogenic tanks spiked due to human error. Officials at University Hospitals have apologized repeatedly to the affected patients, and say that they are working to provide refunds, free services, and “emotional support.” A similar incident also occurred last March at Pacific Fertility Center in San Francisco when a storage freezer malfunctioned. These incidents have resulted in dozens of lawsuits. The most controversial seek to have embryos classified as “persons” in order to sue the clinics for wrongful deaths.

Unfortunately, courts almost always refuse recovery in cases of reproductive negligence. The problem is that our legal system does not accommodate remedies for the actual harm in such cases: the deprivation of the chance for wanted pregnancy or parenthood .  Deeming embryos to be persons is not necessary to address that harm, and could have devastating consequences for fertility patients.

First, I want to reject one line of argument against the personhood approach, namely, that embryos are not legal persons in U.S. law. In Roe v. Wade, the Supreme Court held that live birth has always been a condition of legal personhood. Moreover, fetuses are not persons within the language and meaning of the Fourteenth Amendment, and do not have a right to life. Although Roe did not address the status of extracorporeal embryos, it’s reasonable to think that if fetuses are not persons, neither are embryos. However, it cannot be concluded from the fact that fetuses are not legal persons in the context of abortion, that fetuses cannot be considered persons for the purpose of wrongful death actions. To see why, we need to know a little about the nature and purpose of wrongful death suits.

…continue reading ‘Wrongful Death Suits for Frozen Embryos: A Bad Idea’

Image: By USDA Gene Bank – USDA Gene Bank, CC0, https://commons.wikimedia.org/w/index.php?curid=49115483

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