DATE PUBLISHED: 09 May 2019 LAST UPDATED: 24 May 2022

Embryos not ‘living persons’ judges rule in Ohio case

Suzi Denton, associate solicitor in our Fertility team, has published the below article for BioNews, a weekly publication about genetics, assisted conception and other related areas. Suzi reports on a recent case in the USA where a couple who lost their embryos following a freezer malfunction are arguing that embryos should be treated as living persons rather than property.

An appeal court in Cleveland, Ohio, has ruled that a couple’s embryos lost in a freezer-failure incident last year were not ‘living persons’, and should not therefore have been treated as patients rather than property.

The judgment of the Eighth District Court of Appeals follows an application made by Rick and Wendy Penniman. The couple’s embryos were stored at the fertility clinic University Hospitals, and were destroyed when the storage tank which was holding them malfunctioned in 2018 (see BioNews 941). Four thousand embryos and eggs belonging to around 950 other families were also lost due to the incident.

The Pennimans’ attorney argued that life begins at conception, and therefore embryos should be treated as people rather than property (see BioNews 961). The application was initially rejected by the Cuyahoga County Common Pleas Court, leading the couple to appeal the decision.

At a hearing in March, the couple’s attorney Bruce Taubman told the court: ‘These embryos are human beings. People treat them as human beings. Unfortunately, the hospital did not.’

Benjamin Sasse, attorney for the clinic, said in written submissions in March that Ohio law ‘consistently limits personhood to a fetus that can exist outside the womb. A frozen embryo is not a fetus. Nor can it exist outside the womb.’

The appeal was rejected by a majority of two to one. The judges said that ‘an embryo that has not been implanted into the uterus of a woman does not constitute a “distinct human entity” and is therefore not entitled to the rights and protections of a person.’

Judge Sean Gallagher dissented, referring to the fact that the other judges had used a definition of a ‘living person’ enshrined in criminal law, as opposed to civil law. In his dissenting opinion, he said: ‘We cannot universally apply criminal statutes, especially those limited to defining the scope of criminal behavior, to all common law and statutory claims in Ohio.’

The couple is now planning to take their case to the Ohio Supreme Court. Commenting on the outcome of the appeal, Taubman said: ‘I am a little disappointed, but we’re going to continue on. We have a very important issue here.’

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