Ruling Affirms Embryo’s Humanity, But Doesn’t Threaten Roe

CHICAGO — An Illinois judge’s ruling that an embryo mistakenly destroyed by a fertility clinic was human life sparked banner headlines and stunned reactions.

But Cook County Circuit Court Judge Jeffrey Lawrence Jr.’s Feb. 4 decree that the parents were entitled to file a wrongful death lawsuit against the clinic isn’t likely to have much of an effect on abortion laws, experts say.

“People are making a lot more out of this case than they should be,” stated James Costello, the Chicago attorney who represents the couple whose embryo was discarded. “It’s not Roe v. Wade. This is one decision based on one law.”

That law is the 1980 Illinois Wrongful Death Act, in which the State Legislature determined that “the state of gestation or development of a human being” when injury or death is caused “by wrongful act, neglect or default” will “not foreclose” any legal action. The inclusion of the words “or development” has carried the weight of this law into the era of advanced scientific treatment of infertility and the handling of newly created life.

“The legal community has wrestled with ‘or development’ and asked, ‘What’s meant by that?’” Costello said. “It applies to situations like what we have here.”

 Alison Miller and Todd Parrish were notified by the now-closed Center for Human Reproduction in Chicago in June 2000 that their embryo, which had “developed into a healthy blastocyst” (according to the Circuit Court Memorandum), had not been properly preserved for later implantation. The center regretted the error, and the embryologist was subsequently terminated, the letter stated.


No Judicial Activism

Costello credits Lawrence for steering clear of “judicial activism” and for stating in the oral argument that his own beliefs did not apply to the case.

“He followed the law as was enacted by the Illinois legislature,” Costello said. “The real victory for the right to life was in 1980 when the legislature wrote that bill.”

 Americans United for Life, a national nonprofit, public interest law firm, sees victory in both the bill’s intent and its current application.

“This is unique among the laws in other states,” noted Clarke Forsythe, the firm’s Law & Bioethics project director. “The language is very broad and specific in its coverage of a human being without regard to their stage of development. That breadth of law was waiting to be applied, and Judge Lawrence made a reasonable interpretation of what that legislation was trying to do in 1980. It’s not criminal death or abortion law, so a constitutional challenge would probably fail because it does not affect abortion.”

However, that’s one of the many fears publicly raised after this ruling came out, and Costello is getting used to them.


Significant Precedent

“This ruling does not affect the U.S. Supreme Court’s decision in Roe v. Wade,” he stated. “The Wrongful Death Act itself provides an exception in cases where the mother seeks to end the life of the fetus, rather than to create one. It is limited to citizens of the State of Illinois. It is a civil case and has no bearing on criminal misconduct or liability. Like most people who are involved in wrongful death cases, these people want to know exactly what happened, why it happened and what can be done to ensure something like this never happens to anyone else.”

The fears and predictions that the Lawrence ruling, by applying the definition of human life to the moment of conception, will set a significant precedent have carried on with their own momentum. They have generated discussion and debate through professional organizations and in the media. An Associated Press story circulated widely, both in print and on the internet, carried the headline “Embryo Ruling Could Have Chilling Effect,” and stated that “most legal experts believe the ruling will be overturned,” though it spelled out their worries nonetheless.

This is a good thing, according to Northwestern University Law Professor Victor Rosenblum.

“This introduces the opportunity for further litigation on all sides of the issue, and that’s encouraging,” said Rosenblum, who said he is “by choice a pro-lifer.”

“Is there a nexus between the Supreme Court ruling and the Wrongful Death statute? That would be one question,” Rosenblum said. “It’s essentially an invitation to engagement, and that is always a useful thing.”

“Two issues are raised by this case,” wrote Judge Lawrence in his Opinion and Order. “Is a pre-embryo a ‘human being’ within the meaning of Sec. 2.2 of the Wrongful Death Act? And, must it be implanted in its mother’s uterus to give rise to a claim under the act for its destruction?”

 Referring to the drafting and intent of that Wrongful Death Act, Lawrence stated that such clear and unambiguous language “must be given effect” without reconstruction. “Words in a statute must be given their plain and ordinary meaning,” he ruled. “Every word in a statute must be given meaning, so that none is rendered superfluous or meaningless. … Philosophers and theologians may debate, but there is no doubt in the mind of the Illinois Legislature when life begins. It begins at conception.”

Sheila G. Liaugminas

writes from Chicago.

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