Family Law

Epic Battle Rages On In Embryo Destruction Lawsuits

Unsurprisingly, lawsuits against the clinics have flooded in, with numerous legal theories being advanced in order to establish liability.

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March 4, 2018, is a date that will live in infamy. On that date, thousands of people who wanted to be parents lost one of their best potential options: using their own cryopreserved embryos. Some of those embryos were cryopreserved when the individuals were younger, or before they suffered from medical conditions like cancer that increased the likelihood of permanent infertility.  But on March 4, 2018, malfunctions in a cryopreservation unit in Ohio caused the loss of 4,000 children … or the loss of viability of 4,000 embryos and other reproductive tissue, depending on your point of view. Bizarrely, on the exact same date, a similar storage tank in San Francisco also malfunctioned, causing another devastating loss of thousands of embryos.

Unsurprisingly, lawsuits against both clinics have flooded in, with numerous legal theories being advanced in order to establish liability.  Over 70 cases have been filed in Ohio alone, and they have since been consolidated before a single judge. While the cases were originally assigned to the seasoned Cuyahoga County Common Pleas Court Judge Stuart Freidman, Judge Friedman is no longer on the case. In an argument in favor of judicial life tenure, Friedman was prevented from seeking another judicial term due to statutorily imposed age limits. Judge Freidman asked for an exception to the normal rule from the Ohio Supreme Court Chief Justice, which would have allowed him to resolve the incredibly complex embryo cases before him. But his request was denied. Ouch.

So the cases have now been shifted to the county’s newest elected judge, Judge Ashley Kilbane. Never having served on the bench before her investiture earlier this month, Judge Kilbane is the tender age of 35. Her handling of the cases of course brings fresh eyes and a new perspective. But while those things may be good for a new a burgeoning area of law, the parties are in a world of uncertainty.

Loss of Property or Manslaughter?

The Plain Dealer spoke with Rick and Wendy Penniman, who are some of the plaintiffs who lost embryos in Ohio. Judge Friedman dismissed the Pennimans’ claims that their embryos lost in the March 4 malfunction were in fact persons. The Pennimans are now asking an Ohio appellate court to rule, and asking that their claims for wrongful death be allowed to proceed. Obviously, any damages calculations based on wrongful death are going to be significantly higher than the mere loss of the property value of the embryos.

Notably, however, Wendy Penniman was quoted saying this is not about money, and that she is willing and ready to take their case all the way to the U.S. Supreme Court.

To be sure, I am sympathetic to the plaintiffs’ claims. The lost embryos represent hours of painful shots, wild emotions, lost time, as well as tens of thousands of dollars, if not more, in the hopes of having a child. And now, for many, there is no longer hope. Although many of the plaintiffs can never be made whole for their loss, they should not be left empty-handed. But bad facts make bad law. And a ruling that embryos are persons would be devastating to current and future hopeful parents with little choice but to turn to IVF. If clinics really had to worry about the potential to trigger thousands of wrongful death claims, the entire area of medicine would suffer.

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Purely Malpractice?

On the other side of this legally complex battle, University Health — the Defendant clinic — has filed a motion requiring all plaintiffs in the case to limit their claims to malpractice causes of action. With a one-year statute of limitations from the event of malpractice, and significant restrictions on awards for damages — $350,000 for an individual; $500,000 for a couple — restricting all suits to malpractice claims is certainly in the clinic’s favor. Judge Friedland had rejected an earlier motion making this argument, by ruling that failing to properly monitor cryopreservation storage units was not “practicing medicine.” As such, it was not within the confines of a medical malpractice claim. However, with the new judge on the case, the clinic’s attorneys are refiling the motion to be heard by Judge Kilbane.

Supreme Court Bound?

It is only a matter of time until one of the many contentious embryo cases makes its way to the U.S. Supreme Court. In that regard, I would bet on one of the cases involving the post-divorce disposition of embryos. Colorado’s Supreme Court recently ruled on such a case. And in 2018, Arizona passed a bizarre and concerning statute requiring Arizona judges to ignore any agreement between a divorcing couple and award all cryopreserved embryos the couple might have to the spouse most likely to “bring the embryos to birth.”

While divorce law isn’t generally a federal issue, the fundamental conflict between the right to reproduce, and not to reproduce, requires some reference to the 14th Amendment’s privacy jurisprudence. If a lower court reaches that question, I could see the Supreme Court wanting to set federal law straight.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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