Frozen Embryo = Person?

By Sherry F. Colb, FindLaw.com. Posted February 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.

But 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

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.

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