We know that during human reproduction the process of fertilization creates a unique human person with their own life and dignity, but that is not always recognized in a legal sense. With the rise of IVF (in-vitro fertilization) which creates numerous embryonic humans, the question of “persons vs. property” is coming into the spotlight. Science tells us that from the moment of sperm-egg fusion during fertilization, a new living human organism is created with unique DNA. That organism is a human being, even if they are only in the very beginning of their development, and they should be treated as such.
Kate Plants was the mother of five embryos placed in cryogenic stasis. She and her husband went through in-vitro fertilization because she knew that her cancer treatment would render her infertile. In fact, she had to remove her uterus and an ovary, so she has no chance of future conception. Before treatment began, Kate and her husband, Jeremy, froze five viable embryos so that they could have their own biological family someday when Kate was healthy again. Then, they received the call from their fertility clinic explaining that their embryos were “compromised” due to “catastrophic failure” of the cryogenic freezer where they had been stored. The temperature alarms had mistakenly been shut off, so the freezer was out of range for an entire night. Embryos at that stage can only survive at room temperature for a few minutes, so there was little to no chance for a successful pregnancy. “It hit me like a ton of bricks…” said Plants. “The rest of the world looks at it as eggs and embryos, but we look at it as our future children.”
Plants connected with other people affected by the freezer failure via a private Facebook group. She saw the deep emotional pain and wanted to do something to support those who, like her, had lost their children and dreams of family. Local organizations graciously donated to create an inscribed bench for the Woodvale Cemetery which commemorates the unborn children. A collective funeral was held, during which many of the affected families and individuals came together to grieve. Plants described the area as “just a really beautiful place. It doesn’t feel like death; it feels like a place of life… like a secret garden.”
While the funeral and memorial bench were important for their emotional health, the journey is far from over. Plants and her husband are now suing the clinic, alongside 199 other families and individuals who were affected by the freezer failure. Attorney Tom Merriman is representing these cases; he said he chose not to pursue a class action lawsuit because each person’s story of loss is “so personal and profound and unique, [he] didn’t feel a class action would capture that adequately."
Wendy and Rick Penniman have filed their own lawsuit that seeks the recognition of embryos as legal persons through a wrongful death suit. They lost one embryo in the clinic failure - the hopeful sibling for their two children. While their county judge denied their “personhood” motion, they are appealing to the 8th District Ohio Court of Appeals. Legal embryonic personhood is unprecedented in Ohio, but it could be in line with new ways of thinking about reproductive rights. Ohio’s wrongful death statute used to only apply to adults and children, but in 1985 the state Supreme Court extended the statue’s coverage to “viable” fetuses. If the Pennimans’ case is successful, it could further extend the coverage to embryos.
University Hospitals, the parent of the fertility clinic in question, has argued that the Penniman case has no validity because of the paperwork the couple signed at the start of their treatment. The consent form referred to the embryos resulting from the treatment as their “sole property” - not their “sole persons.” It also stated that “Ohio law does not recognize the embryo as a ‘distinct human entity with rights.’” This would relegate all of the freezer failure trials to medical malpractice and property mediation, rather than wrongful death cases.
This is similar to the debates that come up when divorced or separated couples disagree about the plans for their frozen embryos. Some couples sign an agreement that specifies instructions in the event of separation, and that can guide their actions. But most of the time, no such agreement exists. Sometimes the ensuing lawsuit will proceed as a custody battle, such as Mimi Lee’s case. This demonstrates a recognition of the embryos as children — distinct human persons with rights. Other times, the lawsuit will proceed as a property dispute, such as Mandy and Drake Rooks’ case in Colorado. Such cases propagate that false understanding of embryos as objects or tissue with no innate human value.
Ten states are currently examining “personhood laws,” legislation that would recognize embryos and fetuses as people. This would afford them full protection and rights under the Constitution. Those states are Arizona, Colorado, Iowa, Kansas, Minnesota, North Carolina, South Carolina, Tennessee, Washington, and West Virginia. There are also several federal bills being put forth, such as the Life at Conception Act. These laws would radically change our society’s way of looking at the development of the human person. If life were to finally be legally recognized as beginning at conception, it would set new precedents for how we look at IVF, abortion, and more. Such a drastic overhaul of our nation’s worldview will take time, but we can be confident that the truth will come to be valued in its fullness. I am confident that our society will learn to respect life from its beginnings to its natural ends, and human rights will be afforded to even the smallest humans.
1 "Life Begins at Fertilization with the Embryo's Conception," Princeton University, , accessed September 23, 2018, https://www.princeton.edu/~prolife/articles/embryoquotes2.html.
2 Washington, Julie. "West Side Couple Share Pain of Embryo Loss in UH Freezer Failure." Cleveland.com. March 14, 2018. Accessed September 23, 2018. https://www.cleveland.com/healthfit/index.ssf/2018/03/west-side_couple.html. 3 "These Would-be Parents' Embryos Were Lost. Now They're Grieving - and Suing." The Washington Post. August 24, 2018. Accessed September 23, 2018. https://www.washingtonpost.com/national/health-science/these-would-be-parents-embryos-were-lost-now-theyre-grieving--and-suing/2018/08/24/57040ab0-733c-11e8-805c-4b67019fcfe4_story.html?noredirect=on&utm_term=.23a2118fb0e3. 4 LaMotte, Sandee. "'Our Future Family ... Gone': Parents Grieve Lost Embryos." CNN. May 12, 2018. Accessed September 23, 2018. https://edition.cnn.com/2018/03/13/health/embryo-lawsuits-grieving-parents/index.html.
5 Dealer, Ginger Christ The Plain. "Memorial Service for Embryos Lost during UH Fertility Freezer Incident Set for Saturday." Cleveland.com. May 11, 2018. Accessed September 23, 2018. https://www.cleveland.com/healthfit/index.ssf/2018/05/memorial_service_for_embryos_l_1.html.
6 Dolan, Maura. "Divorced Couple's Frozen Embryos Must Be 'thawed and Discarded,' Judge Rules." Los Angeles Times. November 18, 2015. Accessed September 23, 2018. http://www.latimes.com/local/lanow/la-me-ln-frozen-embryos-20151118-story.html.
7 Littman. "Colorado Supreme Court Considers Embryo Fate After Divorce." Littman Family Law. August 31, 2017. Accessed September 23, 2018. https://www.davidlittmanpc.com/blog/2017/09/colorado-supreme-court-considers-embryo-fate-after-divorce.shtml.
8 "Opposing Personhood." RESOLVE: The National Infertility Association. Accessed September 23, 2018. https://resolve.org/get-involved/advocate-for-access/our-issues/opposing-personhood/.
9 "Legislative Action." Welcome To NPLA. Accessed September 25, 2018. http://www.prolifealliance.com/end_roevwade.html.