CHICAGO – All Alison Miller and Todd Parrish wanted was to become parents. But when a fertility clinic didn't preserve a healthy embryo they had hoped would one day become their child, they sued for wrongful death.
A judge refused to dismiss their case, ruling in effect that a test-tube embryo (search) is a human being and that the suit can go forward.
Though most legal experts believe the ruling will be overturned, some in the fertility business worry it could have a chilling effect, threatening everything from in vitro fertilization (search) to abortion rights and embryonic stem cell research.
"If the decision stands, it could essentially end in vitro fertilization," said Dr. Robert Schenken, president of the American Society for Reproductive Medicine (search). Few doctors would risk offering the procedure if any accident that harmed the embryo could result in a wrongful death lawsuit, said Schenken, chairman of obstetrics and gynecology at the University of Texas in San Antonio.
He said the society, a professional group for fertility doctors, is considering filing a court brief opposing Friday's ruling by Cook County Judge Jeffrey Lawrence.
The lawyer for the clinic, James Kopriva, declined to say if an appeal is planned, but added, "We are weighing our options. We disagree with the court's decision and do not believe Illinois law provides for the remedy provided by the court."
In a letters to the couple in June 2000, Dr. Norbert Gleicher, director of the Center for Human Reproduction, said an employee had failed to put an embryo in frozen storage and he apologized for "this oversight."
If the ruling for the couple holds, it would have no legal standing outside Illinois. However, it could provide impetus for groups elsewhere to push an agenda opposing both abortion rights and stem cell research, said Northwestern University law professor Victor Rosenblum, an abortion foe who has worked with anti-abortion activists.
"I certainly admire the initiative of the Cook County judge in taking this step," but it likely will not survive any appeals attempts, Rosenblum said.
The judge refers in his ruling to an Illinois statute that implies that wrongful death lawsuits can be filed on behalf of the unborn regardless of age. In Lawrence's interpretation, that includes a test-tube embryo before pregnancy — the microscopic bunch of cells that form after an egg is fertilized in the laboratory but before being implanted into the womb.
There are nearly half a million such embryos frozen at fertility clinics nationwide. They are typically extras produced through in vitro fertilization, and most clinics keep them indefinitely until couples decide to use them or authorize their disposal, said University of Minnesota ethicist Jeffrey Kahn.
Kahn said if the decision stands, "it will have implications not only for embryonic stem cell research, but for all of reproductive medicine, potentially."
Lori Andrews a reproductive rights lawyer in Chicago, said the Chicago case is reminiscent of disputes in other states in which custody of embryos was at issue — including a Tennessee divorce case in which a lower-court ruling that an embryo was a child was reversed on appeal.
Dr. Ralph Kazer, head of the IVF program at Chicago's Northwestern Memorial Hospital, said fertility specialists are watching the case with interest, but also said he doubts it will stand.
He said the case serves to "simply remind me and to remind my team that we have to continue to be very fastidious about how we handle our embryos."
Miller and Parrish, the Chicago couple, had no intent beyond seeking justice for the clinic's error, said their attorney James Costello. A phone listing for them in Chicago was disconnected and Costello said they did not want to discuss their case with the news media.
"This was a couple who wanted to become parents, this isn't Roe vs. Wade," Costello said, referring to the Supreme Court decision legalizing abortion.
"What they're looking for is a day in court," Costello said.