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Embryos not 'living persons' judges rule in Ohio case

7 May 2019
Appeared in BioNews 997

An appeal court in Cleveland, Ohio, has ruled that a couple's embryos lost in a freezer-failure incident last year were not 'living persons', and should not therefore have been treated as patients rather than property.

The judgment of the Eighth District Court of Appeals follows an application made by Rick and Wendy Penniman. The couple's embryos were stored at the fertility clinic University Hospitals, and were destroyed when the storage tank which was holding them malfunctioned in 2018 (see BioNews 941). Four thousand embryos and eggs belonging to around 950 other families were also lost due to the incident.

The Pennimans' attorney argued that life begins at conception, and therefore embryos should be treated as people rather than property (see BioNews 961). The application was initially rejected by the Cuyahoga County Common Pleas Court, leading the couple to appeal the decision.

At a hearing in March, the couple's attorney Bruce Taubman told the court: 'These embryos are human beings. People treat them as human beings. Unfortunately, the hospital did not.'

Benjamin Sasse, attorney for the clinic, said in written submissions in March that Ohio law 'consistently limits personhood to a fetus that can exist outside the womb. A frozen embryo is not a fetus. Nor can it exist outside the womb.'

The appeal was rejected by a majority of two to one. The judges said that 'an embryo that has not been implanted into the uterus of a woman does not constitute a "distinct human entity" and is therefore not entitled to the rights and protections of a person.'

Judge Sean Gallagher dissented, referring to the fact that the other judges had used a definition of a 'living person' enshrined in criminal law, as opposed to civil law. In his dissenting opinion, he said: 'We cannot universally apply criminal statutes, especially those limited to defining the scope of criminal behavior, to all common law and statutory claims in Ohio.'

The couple is now planning to take their case to the Ohio Supreme Court. Commenting on the outcome of the appeal, Taubman said: 'I am a little disappointed, but we’re going to continue on. We have a very important issue here.'

Court rules that embryos are not people
News5 |  2 May 2019
University Hospitals fertility case: Appellate court rules lost embryos were not living persons |  2 May 2019
28 January 2019 - by Georgia Everett 
Eight new lawsuits have been filed this week following the loss of 4000 eggs and embryos when a storage tank in a fertility clinic malfunctioned...
26 November 2018 - by Lone Hørlyck 
Experts have strongly criticised a claim that embryos lost during a storage tank failure at a fertility clinic were 'people'...
6 August 2018 - by Jen Willows 
An Ohio couple are continuing their legal fight to have their lost embryos declared to have the same legal status as people...
19 March 2018 - by Jen Willows 
A second US fertility clinic has reported a malfunction of a tank used to store frozen eggs and embryos...
12 March 2018 - by Lone Hørlyck 
A temperature fluctuation in a storage bank has compromised at least 2100 frozen eggs and embryos in a fertility clinic in Cleveland Ohio...
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