Recently, an Illinois court altered the definition of an embryo to include it as a human being. While the decision is limited in scope, it once again emphasizes the continuing problems that the legal system has in dealing with the rapid developments in assisted reproductive technologies. The following is a brief summary of the case, Miller v. American Fertility Group (Circ. Ct., Cook Cty., Ill., 02 L 7394)
Facts: In January, 2000, the Millers, an infertile couple, underwent an IVF cycle at the American Infertility Group, S.C., d/b/a the Center for Human Reproduction – Illinois (“CHR”) to create embryos to freeze and be used at a later date. Several embryos resulted and at least one developed to the blastocyst stage. When CHR later determined that the blastocyst had not been cryopreserved as planned, they notified the Millers and offered them a free IVF cycle. The Millers filed a complaint, which was later amended, alleging a cause of action under the Wrongful Death Act (740 ILCS 180/1 et seq.)(the “Act”), negligence and wanton and willful misconduct and breach of contract. CHR moved to dismiss and the complaint was dismissed with prejudice as to the first 2 counts, and with leave to replead the 3rd count, in part. The 2nd amended complaint re-asserted claims for wrongful death, negligence breach of contract, and the Millers moved to reconsider. The court (with a new judge, as the previous trial judge had retired) denied the motion, refusing to reconsider the original order, leaving the case with only part of the pleadings settled. The Millers again moved for reconsideration of the wrongful death claim and this court chose to review the interlocutory orders
Issues: Is a pre-embryo a “human being” within the meaning of the section 2.2 of the Act? Must a pre-embryo be implanted in a woman’s uterus to give rise to a claim under the Act?
Analysis by the Court: A court may review the interlocutory order of another judge and may address issues of public importance that are of first impression in this state. Of primary concern is the definition of a human being under the Act. The Act, as amended in 1980, states in section 2.2:
“The state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default.
There shall be no cause of action against a physician or a medical institution for the wrongful death of a fetus caused by an abortion where the abortion was permitted by law and the requisite consent was lawfully given. Provided, however, that a cause of action is not prohibited where the fetus is live- born but subsequently dies.
There shall be no cause of action against a physician or a medical institution for the wrongful death of a fetus based on the alleged misconduct of the physician or medical institution where the defendant did not know and, under the applicable standard of good medical care, had no medical reason to know of the pregnancy of the mother of the fetus.”
Where the legislature does not define a term, as in the Act, the court may look to legislative history and other statutes for clarification. While the legislative debate by Senator Rhoads, sponsor of the Act’s amendment, discussed two Illinois Supreme Court cases of negligence causing injury to an unborn child. In one case the fetus died as a result of maternal injury at 36 weeks gestation (after viability)1, and in the other case liability attached even though the negligent conduct occurred prior to conception.2 Senator Rhodes noted that no IL statute addressed the time between conception and viability and that the amendment would close this gap in the law, allowing a cause of action for this time period; however, no legislator defined what was meant by the term “human being.” The court then turned to the Illinois Abortion Law of 1975 (720 ILCS 510/1) (the “Abortion Law”) for a definition because during the above-mentioned debate, the legislators discussed the close interrelationship between the Act and the Abortion Law. The relevant sections of the Abortion Law state that “…the unborn child is a human being from the time of conception…entitled to the right to life from conception….. ‘Fertilization’ and ‘conception’ each mean the fertilization of a human ovum by a human sperm, which shall be deemed to have occurred at the time when it is known a spermatozoon has penetrated the cell membrane of the ovum.” Treating the two laws as cohesive, a pre-embryo is a “human being” within the meaning of the Act.
Whether the Act applies to an unimplanted pre-embryo is more difficult, but guidance can be found in the legislative history and the language of the Act. The Act was intended to allow for a cause of action before viability and addresses, in part, “The state of gestation or development of a human being…” [Emphasis added.]. The term “development,” while not defined, must be afforded a meaning separate from the word “gestation,” or the legislature would not have kept it in the Act. Therefore, the legislature must have contemplated development outside the womb. To allow a claim for prenatal injuries, but not for prenatal death would create a legal conflict, and is an illogical conclusion of the current case law. It would be contrary to allow a claim for an implanted embryo, but not for one that is not implanted. While there may be argument as to the intent of the legislature, if the definition under the Act is not correct, new legislation is needed.
Decision: (Lawrence, J.) A pre-embryo is a “human being” within the meaning of section 2.2 of the Act. A claim may arise under the Act for the wrongful destruction of a pre-embryo.
Comment: The case of Miller v. American Fertility Group creates a potential problem for all assisted reproductive technology (ART) programs if the decision stands. The day-to-day operation of ART programs involves many instances where embryos are destroyed, including under the direction of patient consent forms, which explicitly allow for destruction of embryos. However, it would seem unlikely that human embryos will be afforded “human” status, even for the purposes of claims under the Illinois Wrongful Death Act, as this conflicts with how the courts have traditionally dealt with embryos.
In Illinois, as in many other states, the state appellate or state Supreme courts have not heard cases that have addressed the legal status of human embryos. Where cases regarding the disposition of frozen embryos were filed in Illinios, the litigants have settled prior to trial, which did not require an opinion concerning the status of the human embryos by a court of law. In contrast, in states where cases of disposition of human embryos have been adjudicated, judicial opinions consistently determined that embryos, while something more than property do not merit the same legal protection as persons3. The often cited case of Davis v. Davis4, best explains the special status of embryos. Here, the Tennessee Supreme Court stated that frozen human embryos did not meet the definition of “person.” The Court held that the disposition of frozen embryos should be determined by the couple in their pre-cycle disposition statements. If no such agreements existed, then the disposition of the embryos would be decided on a case by case basis weighing the constitutional right to parent and the correlating right not to parent. The Davis court upheld the right not to parent and the end effect was that the embryos were destroyed. ART programs then felt comfortable destroying embryos with the consent of their patients.
The Illinois legislature clearly believes in statutorily defining a “human being” as existing from fertilization. A number of Illinois laws specifically address what is a “human” or a “person,” or when life begins. Examples of this include the IL criminal homicide law, which states, “Intentional homicide of an unborn child: (b). For purposes of this Section, (1) “unborn child” shall mean any individual of the human species from fertilization until birth….;”5 the Illinois Abortion Law of 1975, which states: “Fetus” and “unborn child” each mean an individual organism of the species of the homo sapiens from fertilization until live birth.”6; and the recent IL Gestational Surrogacy Act, stating: [a] “Pre-embryo” means a fertilized egg prior to 14 days of development.”7 However, the treatment of embryos in IL still depends completely upon the setting in which the issue is raised.
Consider a potential (if dramatic) fact pattern. A patient’s husband becomes irate at her on the trip home from her embryo transfer and kills her. It is clear that he can be charged with the homicide of his wife. It is now less than clear if he can also be charged with the homicide of the unborn child – the couple’s transferred embryo. In contrast, however, if this same couple were to freeze their excess embryos, eventually divorce, and enter a custody battle over the embryos, under the Davis ruling (which IL courts have considered), he could legally have the embryos destroyed if he wins the custody battle.
State law (both legislative and through the court system) has not given the medical profession guidelines about how to deal with the legal status of human embryos. The current post-hoc process of creating law through litigation and judicial activism side-steps the legislative process, precluding the democratic system and legislative intent. It is understandable that an issue as sensitive as defining the beginning of life creates nightmares for legislators. In addition, the rapid development of assisted reproductive technologies has surpassed the ability of the legislative process to deal with these issues. Meanwhile, patients and physicians are creating hundreds of embryos on a daily basis. ART programs are now less comfortable destroying any embryos, even with patient consent. Until one definition prevails, the best physicians and patients can do is to memorialize their intent through the informed consent process and accept that circumstances might change such that litigation will be the final determination for resolution of these issues.
1 Christafogeorgis v. Brandenberg, 55 ILL.2d 368, 304 N.E.2d 88 (1973)
2 Renslow v. Mennonite Hosp., 67 Ill.2d 348, 367 N.E. 2d 1250 (1977)
3 For example, Del Zio v. Columbia Presbyt. Hosp., 1978 US Dist LEXIS; and, York v. Jones, 717 F. Supp 421 (E.D.Va. 1989).
4 842 S.W.2d 588, 604 (Tenn 1992).
5 720 ILCS 5/9-1.2 (2004).
6 720 ILCS 510/2 (2004).
7 750 ILCS 47/10 (2004).
John S. Rinehart MD, PhD, JD is the Director of the Division of Reproductive Medicine and Infertility at Evanston Northwestern Healthcare, Evanston, Illinois.
Lisa A. Rinehart RN, BSN, JD is the Director of Operations and Development at the Rinehart Center for Reproductive Medicine, Evanston, Illinois.