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Ohio Appeals Court Affirms Embryos Are Not Persons

An Ohio appeals court upheld decades of legal precedent in ruling early this month that embryos are not persons. But viewed in the context of so-called “heartbeat laws” recently introduced in several state legislatures, including Georgia’s version, signed by Gov. Brian Kemp on May 7, 2019, deeming “unborn children” as a “class of living, distinct person,” the challenge looks like another avenue to challenging reproductive rights enshrined in the U.S. Constitution.

The 8th District Ohio Court of Appeals 2-to1 ruling occurred in a lawsuit against University Hospitals Fertility Clinic in Cleveland, after an estimated 4,000 embryos and unfertilized eggs were destroyed due to a freezer failure in March 2018. To make matters worse in the public eye, a second, unrelated freezer failure occurred the same weekend, at Pacific Fertility Center in San Francisco.

As reported by Cleveland.com, more than 100 families joined a class action suit, filed March 12, 2018, against University Hospitals in Cuyahoga County Common Pleas Court. But one couple, Rick and Wendy Penniman, as reported by The Atlantic, on March 29, 2018, filed an additional complaint, asking the court to declare that “the life of a person begins at the moment of conception,” and that “the legal status of an embryo is that of a person.”

The attorney representing the Pennimans, Bruce Taubman, promised to appeal the recent Ohio appeals court decision.

Taubman said that, had the appeals court ruled in the Pennimans’ favor, the destroyed embryos would have been considered patients of the fertility clinic, allowing plaintiffs to sue for wrongful death, which can incur much steeper damages.

But another attorney, Tom Merriman, representing more than 100 clients in the class action suit against University Hospitals, argued that, while an embryo is distinct from and has a higher value than other types of property, asking the court to overturn standing law and grant personhood to embryos adds a partisan political element to the case.

“An embryo—whatever your personal moral or religious belief about the status of embryos—it’s something that’s created with tremendous personal sacrifice,” Merriman told The Atlantic. “It is unique, and it has value far greater than something like your car or your TV…. I hate to see these cases get politicized and transformed into some partisan debate on a hot-button issue.”

Some of the intended parents whose frozen eggs or embryos were destroyed in the freezer malfunction spoke of the loss of their embryos as equivalent to the loss of a child. Among those who expressed that view was Wendy Penniman, speaking on the Today show: “How many babies are at risk right now while we sit, while we talk?”

As the Ohio appellate court confirmed, U.S. law is clear that an embryo, before it is implanted, is not legally a “person.” Writing for the two-to-one majority, Judge Larry Jones confirmed that an embryo is not capable of “independent survival” and therefore is not a “distinct human entity.”

But, on another front, Ohio legislators, and those of several other states, are already pushing the questions of how personhood is defined and at what stage of development human life begins: Just a month prior to the ruling against the Pennimans, Ohio lawmakers passed and the governor signed into law SB 23, the Human Rights and Heartbeat Protection Act—a so-called “heartbeat bill”—which bans abortions if a fetal heartbeat is detected, as early as 20 weeks into a pregnancy—despite the fact that an unborn fetus would be incapable of surviving independently outside the womb at 20 weeks, and despite that fact that most women would be unaware they were pregnant so early in the term. Anyone violating the ban would be subject to felony charges. Physicians who performed abortions to save the life of the mother would not be criminally liable.

The Ohio bill is one of five “heartbeat bills” (along with Alabama, Georgia, Kentucky and Mississippi) set to take effect in 2019 or 2020, all of which face certain, stiff court challenges. Taken together, they constitute a multi-front assault on established reproductive law. Anti-abortion activists and legislators hope one or more of the challenges to the state heartbeat laws will eventually make it to a Supreme Court that currently leans conservative 5 to 4: if one case doesn’t make it through the Court’s filters of established law and societal sentiment, perhaps another, citing a slightly different technicality or legal precedent, will.

Of the five, Georgia’s bill is the most onerous. As reported in Vice.com, HB 481, the Living Infants Fairness and Equality (LIFE) Act, says that “unborn children are a class of living, distinct person” to whom the state should provide “full legal recognition.”

The law specifically declares: "It shall be the policy of the State of Georgia to recognize unborn children as natural persons." The recent bills in OhioKentucky, and Mississippi do not make this additional leap.

For intended parents such as the Pennimans, who believe life begins at conception, declaring an embryo a legal person must seem to be the logical next step. But for IVF clinics and medical providers, for cryopreservation storage facilities, and for intended parents who undergo fertility treatment, the implications of such a legal precedent are staggering.

For one thing, as we wrote way back in 2017 (“What to Do With Abandoned Embryos”), fertility treatments such as in vitro fertilization, if successful at all, almost always result in the creation of multiple embryos. Some of the embryos are not considered viable and are therefore not selected for use. Until recent years, best practice in IVF was to implant two or more embryos to ensure a better chance of a single pregnancy and birth. As technology and outcomes have improved, in order to reduce the number of multiple births, most IVF physicians are now testing the embryos ahead of implantation to screen for viability and therefore now tend to only implant single embryos, particularly in the case of a young mother or surrogate.

In addition to the “excess” embryos created by couples during fertility treatment, many individuals and couples are using advanced cryopreservation technology to preserve embryos as a way to delay pregnancy for health or career reasons, to preserve the ability to procreate following medical treatments or in the event of combat injury or death.

But as anyone who works in the field of family or fertility law knows, circumstances change; couples separate or divorce; spouses remarry, leaving them to deal with frozen embryos created and stored during happier times. When we reported on this topic in 2017, there were an estimated 600,000 to 4 million “abandoned” frozen embryos stored in the United States—that is, as many as 4 million unused embryos for which their owners have stopped paying storage fees and shirked all responsibility. As we wrote then, the practical and ethical dilemma for IVF clinics and cryopreservation facilities is whether to risk potential bad publicity and client heartache by destroying embryos and eggs whose owners fail to pay storage fees… or whether to continue storing abandoned embryos, free of charge, as the numbers and storage capacity required mount indefinitely.

Now consider how much more difficult the dilemma becomes for clinics and storage facilities if those abandoned embryos are considered to be legal persons? Would a failed freezer result in manslaughter charges against the facility? Could an intended parent file a wrongful death suit if frozen embryos were lost or destroyed? Would intended parents be allowed to discard unused embryos after they had their desired number of children, or would they be required to preserve and provide for their embryos indefinitely? Where will the lines be drawn?

Fertility law has always been a fast-moving field, because of the rapidly evolving technology of assisted reproduction and the need for the law to change and evolve to keep up. But the recent resurgence of conservative opposition to reproductive rights, encouraged by an Administration that panders to its base and an increasingly conservative judiciary, poses a growing threat to hard-won reproductive freedoms and equal rights.

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.