An Illinois Judge Declares that Frozen Embryos Are People: What Difference Does It Make?

By SHERRY F. COLB

Wednesday, Feb. 23, 2005

Earlier this month, Illinois judge Jeffrey Lawrence refused to dismiss a wrongful death suit against a fertility clinic in Chicago. The plaintiffs are a couple, Alison Miller and Todd Parrish. They allege that the defendant, the Center for Human Reproduction in Chicago, discarded their nine embryos and thereby ended the embryos' lives.

In Illinois, the judge explained, a fetus qualifies as a deceased person for purposes of the Wrongful Death Act. Furthermore, said the judge, "a pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb." For this conclusion, the judge cited another Illinois law that specifically finds that an "unborn child is a human being from the time of conception and is, therefore, a legal person."

Critics of the decision worry about its potential implications for the right to abortion, for stem cell research, and for fertility medicine. These worries may or may not turn out to be warranted.

This column explores why the decision deeming a fertilized egg a person has moral and legal implications for other issues. It also asks whether, prior to a baby's birth, property law takes sufficient account of the various interests at stake in abortion and fertility medicine (the latter of which includes stem cell research).

Personhood Is Not Necessary For Liability

One argument for the right to abortion is that until viability (or birth, quickening, or whatever the chosen line may be), there is no "person" and therefore no one whose life is entitled to legal protection. If Jane Doe destroys a living entity that does not qualify as a person, then Ms. Doe need not worry about the criminal or civil sanctions that would accompany the destruction of a person. If, on the other hand, a fetus (or even an embryo) is a person, then Jane (and the medical personnel who assist her) might need to worry about homicide liability following an abortion.

Similarly, fertility medicine - like the law of abortion, as currently developed - proceeds on the assumption that embryos are not persons. For that reason, women may undergo ovarian hyper-stimulation to produce many eggs which will be fertilized to produce many more embryos than she would be willing or able to carry to term as pregnancies. A large number of these embryos will eventually be destroyed. If embryos qualify as persons under the law, then such destruction constitutes murder. Moreover, the deliberate creation of persons with the knowledge of their future destruction would make any participant an accomplice.

Does the status of non-person, however, necessarily mean that destruction is permitted? Of course not. Those who destroy embryos or fetuses might well need to worry, because often, though not always, living creatures who do not themselves qualify as "persons" belong to other living creatures who do. The latter may well decide to sue or otherwise penalize the destruction of the former.

Abortion, Fertility Medicine, and the Person/Non-Person Distinction

Two contexts in which the distinction between a "person" and a non-person can nonetheless matter a great deal are abortion and fertility medicine.

In the case of abortion, the person who "owns" the putative property is the very person who seeks to destroy it (presumably with the help of a medical professional). Therefore, under ordinary circumstances, there will be no one to bring an action for violation of a property right.

In the case of fertility medicine too, the people who decide the "fate" of the property are typically the owners (the people from whom the eggs and sperm are taken or their designated beneficiaries). They can implant as many embryos as they wish, on the advice of a doctor, and they can freeze the ones they do not implant for as long as they like. Again, if the embryos are destroyed, their owners will have ordered that destruction and thus cannot complain.

That is one difference between persons and property: you can give up your right to sustain a piece of your property, but you cannot do the same on behalf of another person.

To the extent that you had wanted your property to continue to "live," it would seem fair to force another to compensate you for destroying it. That is perhaps why everyone can agree that attacking a pregnant woman and killing her fetus in the process is a heinous act - whether or not the fetus is a person - and calls for sufficient condemnation and compensation to take into account the death of the woman as well as the loss of the pregnancy that she had hoped to continue.

That is also why plaintiffs Miller and Parrish could recover for the loss of their embryos without those embryos having to qualify as legal persons.

Persons v. Property

In determining whether to call an entity a "person" or a "non-person," the relevant question is therefore not whether the entity's destruction is objectionable. The law governing property is adequate to protect against destruction of things that matter to actual persons. The question, instead, is whether the destruction (or harming) of the entity ought to represent a legally cognizable harm -- that is, a harm the law recognizes and compensates -- to the entity itself.

In other words, if no one cares about the continuing existence of an entity, would destroying it still be wrong? And if the answer to that question is yes, are there nonetheless reasons to vest a decision about its destruction in specific individuals, rather than in the public at large?

Abortion: Perhaps Permissible Even if the Embryo Is a Person

Consider first the case of abortion. Terminating an extant pregnancy through abortion necessarily involves the killing of a developing embryo or fetus. For those who claim that there is no "person" present until a baby is actually born, the act has no moral significance and should accordingly have no legal significance either. I suspect that few people hold strictly to this view, especially in the later stages of pregnancy, when the entity in question has virtually all of the characteristics of a baby.

For those on the other end of the spectrum, there is a person from the moment of conception. That is, a zygote has all of the entitlements of a newborn baby. One who takes this position necessarily believes that abortion is wrong - perhaps equally wrong - at all stages of pregnancy.

Even if you take the latter of these positions, you might still believe that abortion should be legally permissible. You could take the view that an abortion kills a person but only in the way that refusing to donate blood or a kidney to someone who needs your blood or your kidney kills a person.

As I have argued in a different column, at least prior to viability, it is impossible to refuse to lend one's body to another person (which is largely what pregnancy is all about) without killing that other person. Given that fact, the law cannot fairly coerce women to take their pregnancies to term, while at the same time leaving fathers and other relatives free to refuse to donate an organ or blood.

Alternatively, you might - as some nuns and priests did, prior to Roe v. Wade -- support access to safe and legal abortion, because the alternative is often back-alley abortions rather than continuing pregnancies.

In other words, someone who believes that abortion is the killing of a person might nonetheless oppose legal regulation because of the reality that prohibiting people from killing other people who live inside them is a recipe for a dangerous, unscrupulous, and ultimately even more deadly underground.

Fertility Treatments: The Legal Status of Early Embryos

In turning from abortion to the destruction of embryos in fertility treatment, the merits of the debate change significantly, in two main respects.

First, the entity whose status is in question is now, necessarily, an early embryo. It is currently technologically impossible to sustain the life of a developing human embryo outside of another human body beyond a very early stage, if the objective is eventually to permit the embryo to develop into a living baby.

For that reason, those who believe that personhood attaches only long after conception can feel comfortable about relegating frozen embryos to the status of "property." As long as the egg and sperm donors (or their beneficiaries) do not object to the destruction, there is nothing wrong with it and thus, there should be no law against it. To permit plaintiffs to sue a clinic for destroying their embryos without their permission, of course, would be entirely consistent with such an approach.

The second significant distinction between the contexts, respectively, of abortion and fertility treatments, is this: Unlike in pregnancy, a frozen embryo does not live inside another person. Thus, the frozen embryo does not require any particular individual's altruistic sacrifice of bodily integrity in order to remain alive. Furthermore, if the destruction of frozen embryos became illegal, the consequences would not likely include the same level of collateral damage as the back-alley abortion regime.

The separate existence of frozen embryos - if they are, in fact, "persons" - thus gives their claim of a legal right to life much greater force than it would ordinarily have (when physical existence depends on coercing a particular woman to remain pregnant). If one honestly believes that personhood begins at conception, then one cannot support the practice of fertility medicine (at least in the way that it is practiced in the United States, through hyper-stimulation and the destruction of excess embryos on parental request). Those who think that personhood begins at conception must necessarily view the killing of an embryo as murder.

Because embryonic stem cell research depends for its material on the practice of fertility medicine, there are many people - beyond those who practice and take advantage of fertility treatments - who would strongly oppose the criminalization of in vitro fertilization. Such people must, however, acknowledge that their position necessarily denies the personhood of the embryos in question.

But what about the fact that stem cell research saves lives? That fact is relevant only if embryos are non-persons.

If they are persons, by contrast, then the fact that experimenting upon them would save lives has no more force in this context than it does in other human experimentation contexts. There are few absolutes in modern moral philosophy. If there is one, however, it is that a person cannot be killed or otherwise harmed simply as a means of learning medical facts that could help improve the health of other people. If one supports stem cell research, it is because one does not truly view the fertilized egg as a person.

Intuitions: The Problem with Judge Lawrence's Wrongful Death Ruling

Let us assume, as I suspect, that most people share the intuition that a fertilized egg is not a person, though it may perhaps be a special kind of property the potentiality of which demands that it be treated uniquely, in some respects. Such people also likely believe that during pregnancy (though the moment is hard to pinpoint), a non-person graduates to the status of person, and abortion then becomes a moral wrong, whether or not it ought to be a legal wrong as well.

The difficulty with Judge Lawrence's wrongful death ruling - under this set of assumptions - is that it fails to correspond to people's intuitions about fertilized eggs and embryos that are made up of undifferentiated cells that have divided for only a few days after fertilization. A small cluster of undifferentiated tissue may mean a great deal to the man and woman whose cells gave rise to it, but most of us do not view that tissue as a person. Yet Judge Lawrence's ruling asserts, without qualification, that it is.

Despite the embryo's lack of personhood, the law could recognize a cause of action, analogous to one for wrongful death, that would compensate the "parents" of an embryo for its destruction. Such a cause of action would honor their pain. It might also produce a potentially crippling litigation burden for fertility clinics, just as people argue that a wrongful death suit could do. In that sense, a wrongful death action is not uniquely threatening to fertility clinics.

But in another sense, a wrongful death action does pose a distinctive threat to fertility clinics, a threat that is reflected in the distinction between persons and property.

When a child (or even a developing fetus after a certain point) dies, a person with characteristics such as sentience has lost something that he or she previously had. That loss stands in addition to that of the family members who mourn for the child.

In contrast, when an embryo is discarded by mistake, the only ones who lose are other people -- just as only other people lose when a couple decides not to have intercourse (and thus not to produce a child who could have been a wonderful person).

It is quite possible that those who crafted the wrongful death statute had in mind pregnancy loss, rather than the destruction of embryos through fertility medicine. If so, then they might well have assumed that there is no reliable way to tell exactly what stage of development toward personhood a developing fetus had reached at the time of death at another person's hands.

In the case of fertility medicine, however, the stage is necessarily the most early, and any similar presumption of further development is therefore inappropriate.

For this reason, Judge Lawrence made a mistake when he found that the fertility clinic killed persons and that those persons' parents should be able to sue for wrongful death. The harm that was done to the plaintiffs in this case is real. But that harm extends only to them and not directly to the embryos that were destroyed.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her earlier columns, including those covering topics relating to abortion, privacy, and personhood, may be found in the archive of her work on this site.

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