Frozen embryo was a person, UH fertility appeal claims

August 1, 2018

Frozen embryo was a person, UH fertility appeal claims

CLEVELAND, Ohio – A Broadview Heights couple has taken its case against University Hospitals’ fertility clinic to the Court of Appeals, where they hope to win a legal declaration that their lost embryo was a living person, not a piece of property.

Wendy and Rick Penniman were among the 950 families who lost some 4,000 eggs and embryos that were damaged and left nonviable by a rise in the temperature of a storage tank freezer at a UH fertility clinic the weekend of March 3-4.

If necessary, the Pennimans are prepared to argue their case all the way to the U.S. Supreme Court, said the couple’s attorney, Bruce Taubman.

“The Pennimans feel strongly about this,” Taubman said. “A lot of the plaintiffs considered the eggs and embryos to be part of their families.”

Judge Stuart Friedman, who is overseeing the 60 lawsuits filed against the hospital in Cuyahoga County Common Pleas Court, dismissed the Pennimans’ original lawsuit in May. He based his decision on a finding that the couple’s fertilized embryo did not deserve the same legal protections as a child.

“The parents may believe that the embryos they created are already persons, but that is a matter of faith or of their personal beliefs, not of science and not of law,” Friedman wrote in his opinion.

“They are of course entitled to mourn the loss of this potential, and even to feel the anguish of a parent who has lost a child,” the judge continued. “However, the court can deal only with rights and obligations that the law recognizes, not with emotions, feelings or beliefs of individuals.”

In the Pennimans’ appeal brief filed Wednesday, Taubman is seeking a declaration from the 8th Ohio District Court of Appeals that life begins at the moment of conception, thus finding that an embryo is a person.

The Pennimans “viewed the embryos as patients of UH, and should have been treated as such,” Taubman wrote in his brief. But UH “treated them as chattel,” or property, he said. This is the same argument he made to the lower court.

UH “knew weeks prior to the incident that the storage tanks were malfunctioning and ran the risk of losing embryos due to the malfunctioning tanks,” he wrote. “Had UH treated these embryos as patients, immediate steps would have been taken to prevent their loss.”

The law is ambiguous on this point. Although the U.S. Supreme Court has ruled that a fetus is not a person, the Ohio Supreme Court ruled in the 1985 case Werling vs. Sandy that a viable fetus is a person, and that a fetus begins at conception.

In its brief to Friedman seeking his dismissal of the Penniman lawsuit, UH lawyers offered a brief rebuttal: “The law in Ohio is that frozen embryos are property, not persons.”

Hospital attorney Rita Maimbourg cited the fertility clinic consent form the Pennimans signed, which refers to the embryos as “the sole property” of Wendy and Rick Penniman, if one of them were to die.

The Ohio law that Taubman cites in defense of his case involves a “viable fetus,” not an embryo, the UH lawyer argued.

“Because a frozen embryo is not even a fetus, it follows that Ohio law does not recognize the embryo as a ‘distinct human entity with rights that can be enforced,’ ” Maimbourg wrote.

Taubman asked the appeals court to determine that Friedman’s dismissal of the case was improper, that they reverse the decision and return the case to his courtroom.

“What we’ve done here is allowed the court of appeals to find a way to confirm what most Americans want the law to be that life begins at conception,” Taubman said in a phone interview. “I think that’s the prevailing opinion in this country.”

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