Embryos: Property, or people?

Court panel says couple whose embryos went missing can sue clinic for loss, not death.

Published November 2, 2005 4:14PM (EST)

From the AP/Tuscon Citizen: A three-judge panel of the Arizona Court of Appeals has ruled, in effect, that three-day-old, eight-cell cryo-preserved pre-embryos are many things, but they are not people. The panel determined that Belinda and William Jeter, who claim that the Mayo Clinic mistakenly lost or destroyed the embryos they'd created for fertility treatment, could not sue the clinic for wrongful death. The ruling permits the Jeters, however, to pursue claims of loss of irreplaceable property, breach of fiduciary duty and failure to return property.

In its decision, the panel acknowledged that the debate about when "life" begins remains "unsettled" and is "best left to the Legislature." But for the purposes of this case, judges deferred to a 20-year-old state Supreme Court ruling determining that in order to sustain a wrongful death claim, a fetus must be able to survive on its own outside the womb.

Setting aside said debate, it's easy to find compassion for a couple going through the grueling experience of infertility; it's understandable that the Jeters would relate to the embryos -- which took considerable effort to create -- as their "children." (And Broadsheet does wish them all manner of satisfaction, legal and otherwise.)

That said, it's impossible to set aside the debate. Any ruling, even a relatively minor one, that does not define embryos as "microscopic Americans" is another wedge against attacks on abortion, stem cell research and the like. As I wrote in a Salon article about insidious efforts to define embryo donation as embryo "adoption," "Though the 1970 Supreme Court decision legalizing abortion turns largely on the right to privacy, it also notes -- in an aside that has become anything but -- if fetuses were 'people,' they would be entitled to protection under the 14th Amendment, and abortion would still be illegal. The Center for Women Policy Studies has stated that 'legislative efforts to establish fetal patienthood, victimhood and, therefore, personhood represent the primary threat to Roe v. Wade.'"

Now if the court panel could just have a word with the Tuscon pharmacists who refuse to dispense emergency contraception.

By Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of BreakupGirl.net. She also writes for the New York Times, Glamour, and many others.

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