Lawsuit over an embryo fuels debate on when life begins

An Illinois judge allows a wrongful-death suit involving a 'pre-embryo' to go forward, deepening a moral divide.

When Alison Miller and Todd Parrish filed a wrongful-death suit for the destruction of their frozen embryos by a fertility clinic, they just wanted some compensation for their disappointed hopes.

But when a Chicago judge broke precedents by letting the suit stand last month, the decision's ramifications for reproductive technology, stem-cell research, and abortion stirred debate across the nation.

Judge Jeffrey Lawrence's decision is almost certain to be overturned. But it does serve the purpose of underscoring just how sensitive the issue of "personhood" has become in the highly charged world of reproductive rights.

Central to the emotional and philosophical debate over abortion is defining when an embryo or fetus becomes a whole person. Including a frozen "pre-embryo" in that definition, some say, is only the latest development in a wider struggle over reconciling the law with scientific advances.

Jeffrey Kahn, director of the Center for Bioethics at the University of Minnesota, recognizes the recent wrongful death suit as one step in a broader debate. He believes the "personhood" strategies used by abortion opponents, as well as the rapid advances in technologies like ultrasound, are having a cumulative effect on public perception.

"All that rhetoric, and the ability to manipulate and understand more about developing embryos and fetuses - it pushes back in people's minds the point at which we should be thinking about this as a person and not a thing."

The case in question revolves around a mistake. In 2000, Ms. Miller and Mr. Parrish learned that the Center for Human Reproduction had discarded an embryo they had had frozen several months earlier and wished to use for a pregnancy. The fertility clinic apologized for the error, which it blamed on a communication mix-up, and offered a free cycle of in-vitro fertilization.

What's unusual is the couple's decision to sue for damages under the state's wrongful-death act - and Judge Lawrence's decision not to dismiss it. "Philosophers and theologians may debate," he wrote. "But there is no doubt in the mind of the Illinois legislature when life begins. It begins at conception."

That the case even has people talking about abortion ramifications is ridiculous, says James Costello, the lawyer representing Miller and Parrish. He sees it very simply as a case about the harm caused by a hospital's negligence, and says that the wording of the Illinois Wrongful Death Act, revised in 1980 in response to a car accident that killed a 14-week-old fetus, makes it very clear that the age of the embryo or fetus should play no role in the court's decision.

Other experts, however, note that the judge based his decision in part on an Illinois statute invalidated by Roe v. Wade. Even though the direct legal impacts of the suit would be narrow, the idea that a pre-embryo, with just a few cells, could be considered a human being has sent shockwaves through the both sides of the reproductive-rights world.

"It makes everyone nervous," says Robert Schenken, president of the American Society for Reproductive Medicine, who estimates there are 400,000 to 500,000 frozen embryos in the US. "If the embryo is considered human life when it's first developed, that puts the clinic and lab director at obvious risk. Laboratory mistakes happen.... Even though it's a state law, the implications are very important for all clinics that perform in vitro."

Beyond liability for fertility clinics, the suit's effect would be less, but some are concerned with its symbolic impact. "If you're following the philosophical argument, it would make all stem-cell research immoral," says Dr. Kahn. "And what does it say about the half-million frozen embryos?"

Moreover, changing when the law - and perhaps more important, the average person - starts thinking about an embryo or fetus as a person can have a real effect on the public's acceptance of abortion, experts say. It's one reason abortion opponents have been so eager to get laws passed like the Unborn Victims of Violence Act, which criminalizes fetal homicide. "You have to feel an emotion toward the victim," says Joseph Scheidler, national director of the Pro-Life Action League, who supports the judge's decision.

In many ways, the debate highlights the philosophical contradictions within the legal system, and the degree to which many laws are out of date with medical advances. At the time the Illinois Wrongful Death Act was passed, for instance, no one was thinking about frozen embryos.

Many Americans sympathize with the loss of an embryo or fetus to a couple who wanted children, while still supporting abortion. Such distinctions are usually explained through privacy rights. In other words, a woman can choose to end her own pregnancy, but for someone else to end it without her permission would be a crime. The Illinois Wrongful Death Act, like that of many states, contains an exemption for abortion.

Considering a pre-implantation embryo a person is unheard of, says Lorie Chaiten, director of the Reproductive Rights Project for the ACLU of Illinois. If the suit is upheld, "it would definitely have implications for stem-cell research and assisted-reproductive technology," she says. "But it shouldn't affect [abortion rights]."