As the dissent points out, a “child” is a person who is born, and whose life is then ended by someone’s wrongful act.
on Friday that frozen embryos are people. If the court follows its own reasoning to its logical conclusion, in vitro fertilization will end in that state, because these “children” cannot be destroyed byThe court’s unprecedented decision was reached in a case alleging that embryos stored in a “cryogenic nursery” were negligently secured, and that the facility was not properly monitored.
The court construed the state’s wrongful death statute to apply not only to embryos and fetuses in utero, but also to embryos at a “few days” of gestation that had never been implanted in anyone. As the dissenting opinion points out, this bizarre conclusion misreads the state’s own wrongful death law. Worse, if applied consistently, the decision would fundamentally expand the reach of wrongful death statutes, with serious and unanticipated consequences.
A short history of wrongful death laws will help situate this discussion. These laws have always occupied a strange place in tort law. For reasons that remain speculative and unclear, until the latter part of the 19century the civil law provided no remedy against a defendant whose wrongful conduct caused the death of another person. Causing serious injury, by contrast, could lead to a negligence claim, and a substantial award of damages, in favor of the injured plaintiff.
It’s hard to say whether the court will go this far, but that’s where the analysis leads. At least for now, both of those groups should be worried about suits brought on behalf of these embryos—which would likely come fromout of reach for some people. No clinic will freeze unused embryos—at least not without a strong waiver of liability, the enforceability of which is now unclear.
I’m not even done. Yet another problem is that the categories of damages that are awarded in wrongful death laws simply do not fit the frozen embryo cases. Financial loss to surviving family members? Forget that. And loss of companionship? Here’s the chain of causation that would be needed for that to work: First, the couple would have to show that they planned to implant the embryos at some future date.
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