An Illinois appeals court has sided with a fertility center in a first-of-its-kind wrongful-death case, finding that a couple cannot sue the clinic for destroying a fertilized egg that had yet to be implanted in the mother.

Illinois' wrongful-death law was amended in 1980 so that "The state of gestation or development of a human being when an injury is caused" would not prevent an actionable claim. Before the amendment, the state Supreme Court had held that a claim only existed for injuries sustained by a viable fetus.

In 2005, a Chicago judge said the law applied to the case of Alison Miller and Todd Parrish, who alleged that the Center for Human Reproduction Illinois was liable for failing to preserve their pre-embryo for future implantation after they underwent in vitro fertilization.

But the Illinois Appellate Court, Fifth Division ruled last month that Cook County Circuit Court Judge Jeffrey Lawrence should have dismissed the case.

“The purpose of [the 1980 amendment] was simply to eliminate the distinction between a viable and a nonviable fetus,” the decision says. “... The Wrongful Death Act has never been interpreted to apply to situations involving the in vitro fertilization process and cryopreservation of blastocysts or pre-embryos.”

Justice Margaret O'Mara Frossard, writing for the appeals court, focused on the legislative history of the amendment, finding that

the discussions concerning coverage under the Wrongful Death Act from the time of conception occurred in the context of a pregnancy, i.e., "[t]he condition of a woman having an embryo or fetus in her body, usually in the uterus, lasting from the time of conception to the time of childbirth, abortion, etc."

At the time, in vitro fertilization was in its infancy -- by 1980, science had developed only four "test-tube babies." “There was no mention of in vitro fertilization during the legislative debates,” O'Mara Frossard noted.

In his ruling, Lawrence concluded that a "pre-embryo is a human being" and "a claim lies for its wrongful destruction whether or not it is implanted in its mother's womb." He relied on Illinois' 1975 abortion statute, which says that "the unborn child is a human being from the time of conception."

But O'Mara Frossard said the Wrongful Death Act and the Abortion Law were not “in pari materia” statutes that should be construed together, but “address different subjects and were enacted for different purposes.”

The abortion statute, enacted after Roe v. Wade, has no force of law. And O'Mara Frossard added that its definition of “human being” was “expressly limited to that particular statute.”

The Illinois Legislature opened up this can of worms by extending wrongful-death coverage to nonviable fetuses. The appeals court has now at least made sure the law will not be taken to a completely ludicrous extreme.

By Matthew Heller
10/9/08