24 May 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 Ohio, Kentucky, 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.