The Arizona Court of Appeals has ruled that a couple cannot sue for 'wrongful death' over embryos lost or destroyed by a fertility clinic. William and Belinda Jeter sued the Mayo Clinic for wrongful death after it lost or destroyed the five 'pre-embryos' they had created in vitro and cryopreserved, when they were meant to be transferred to another doctor.
The couple, finding they were unable to conceive a child naturally, approached the Arizona Mayo Clinic, where they underwent fertility treatment. A number of Mrs Jeter's eggs were harvested and fertilised in vitro with her husband's sperm. The fertilised eggs were allowed to develop for 72 hours before being frozen for future use. Two implantation procedures were attempted, but on neither occasion did Mrs Jeter become pregnant.
The Jeters then had the cryopreserved fertilised eggs sent to the Arizona Centre for Fertility Studies, a clinic that uses a different implantation method. On a first attempt at the new clinic, a successful pregnancy resulted and the Jeters had a daughter. However, on their second attempt, they discovered that the Mayo Clinic had only transferred five of the remaining 10 fertilised eggs and the rest were not in the straws of frozen material that had been sent. The couple then sued the Mayo Clinic in the Maricopa County Superior Court for wrongful death for the 'loss of potential children', negligent loss of irreplaceable property, breach of fiduciar duty and breach of a bailment (delivery) contract.
The entirety of the Jeters' case was denied at its first hearing in the Maricopa County Superior Court. But a panel of three judges in the Court of Appeals, while denying the claim for wrongful death, did allow the couple to pursue claims relating to loss of irreplaceable property, breach of contract, breach of fiduciary duty and failure to return property. The court defined the fertilised eggs as 'pre-embryos', holding that they had not even reached the point where they could be defined as embryos. Then it said that Arizona State law does not define a days-old human pre-embryo kept outside the womb as a human person, further adding that to succeed in a wrongful death action in relation to a fetus, it must be viable and able to survive outside of the womb. In a previous decision, the Arizona Supreme Court had stated that a 'person' includes 'a stillborn, viable fetus' that would have survived 'but for' the injury that was done to it. The court said that 'unlike a viable fetus, many variables affect whether a fertilised egg outside the womb will eventually result in the birth of a child'. It added that this would make it 'speculative at best' for the court to 'conclude that 'but for the injury' to the fertilised egg a child would have been born and therefore entitled to bring suit for injury'.
The court ruled that any redefinition of what constitutes personhood or of when life begins would be best left to the State's legislature, not the courts. 'Given the current, unsettled discussion over when life begins in this context', it said, 'it is best left to the Arizona legislature, not the courts, to decide whether to include a three-day-old, eight-cell cryopreserved pre-embryo within the statutory definition of 'person' under wrongful death statutes'. Writing the decision for the judging panel, Judge Donn Kessler said that 'pre-embryos occupy an interim category between mere human tissue and persons because of their potential to become persons'.