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A Chicago judge has ruled that a husband and wife will be allowed to proceed with a wrongful death suit against a fertility clinic that allegedly inadvertently discarded their fertilized egg. Lawyers say courts have previously considered cases involving embryos to be property rights or negligence claims, but a wrongful death action presents a new frontier that could affect abortion law, stem cell research, genetic testing and a wide range of other issues. Miller v. American Infertility Group, No. 02L7394 (Cook County, Ill., Cir. Ct.). “Calling this a wrongful death is a new frontier for the judiciary,” said Andrew Worek, a medical malpractice defense lawyer with Philadelphia’s Weber Gallagher Simpson Stapleton Fires & Newby. Worek has written about the legal issues surrounding pre-embryonic human cells. “In the past, they have been handled as property or negligence cases.” The Chicago lawsuit is one of first impression in Illinois, and only Rhode Island has seen a similar case, according to the couple’s lawyer, James Costello, of Chicago’s Costello, McMahon & Burke. The incident began when Alison Miller, 40, and her husband, Todd Parish, 36, contacted the Center for Human Reproduction in Chicago to have their preserved embryo transferred to another facility. The facility responded in a June 2000 letter that it did not have the embryo. The letter to the couple stated: “[B]ased on our records, one of our junior embryologists informed you that we would freeze one embryo at the blastocyst stage . . . a [senior embryologist] then decided not to cryopreserve this embryo.” Costello noted that “[s]teps were taken to create life. Although people may disagree about what sort of life-that very life was destroyed and you then have to ask ‘What is your procedural remedy?’ “ In his recent ruling, Cook County Circuit Court Judge Jeffrey Lawrence focused on two central questions: Is a pre-embryo a human being? Must it be implanted in its mother’s womb to give rise to a wrongful death action? Lawrence said the terms “fertilization” and “conception” are synonymous under the state’s abortion laws, so that a pre-embryo is accepted as a human being. The state’s Wrongful Death Act, amended in 1980, includes “the state of gestation or development of a human being.” The word “development” is the key, said the judge. It indicates that the Legislature was contemplating nongestational development outside the womb. “It would be similarly illogical . . . for this court to allow a claim for the death of an implanted pre-embryo, but to deny it for an unimplanted one,” the court wrote. The clinic’s lawyer, James W. Kopriva, of Chicago’s Cassiday Schade & Gloor, declined to discuss the judge’s ruling in detail. “We disagree with the judge’s decision and we are weighing our options,” Kopriva stated. He added that the clinic now has new management and a different staff of doctors, but he said that the change of ownership had nothing to do with the lawsuit. A lingering question About 38 states have laws allowing parents to sue for the wrongful death of a fetus, according to lawyers. Whether those laws could be extended to include embryos has been a lingering question for lawyers. “For people handling these as negligence claims, there is always the thought in the back of your mind that someone might someday say ‘wrongful death,’ ” Worek said. Most state laws have been directed at embryonic testing. California, Louisiana, Michigan, Rhode Island and Virginia have all passed statutes barring human cloning, and nine states have banned all experiments conducted on human embryos, according to medical journals. In some states, like Missouri and Louisiana, an embryo has legal rights assigned to it from the moment of creation, according to Worek. In Virginia, legal counsel must be assigned to an embryo if it is being tested, he said. Calling a pre-embryo a human being would have huge consequences. “Really you are talking about the age of these things in hours-maybe 24 or 36 hours old,” Worek said. “Chances are it would still be in the fallopian tube at that stage.” Therefore, he added, considering it a human being could present a legal challenge to some contraception, like IUDs, and abortion. “It all becomes very strange.” According to Costello, only Rhode Island has seen a similar case involving the lost or destroyed embryos of three women. In May 2002, the court there said embryos do not have legal status and could not be victims of wrongful death. It did allow the plaintiffs to recover for emotional damages for the loss of irreplaceable property. Frisina v. Women & Infants Hospital, No. CIV A 95-4037 (R.I. Super. Ct.).

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