Doctors and hospitals who destroy or lose frozen embryos can’t be sued for wrongful death, the Arizona Court of Appeals ruled Thursday.
In the precedent-setting opinion, the judges said an unimplanted embryo is not a person under state law. In fact, they said Arizona does not recognize a fetus as a person until it reaches viability — when it can survive outside the womb.
The judges refused, however, to decide when life actually begins. They said answering that question — something debated among doctors, scientists, ethicists and philosophers — is unnecessary to resolving the lawsuit before them.
The judges opted to use the term "pre-embryo’’ in the ruling to describe the eightcelled, 3-day-old fertilized egg to avoid that controversy.
But the legal decision is likely to become part of the ongoing debate about both the legality and morality of experimenting on embryonic stem cells.
While the judges refused to let Belinda and William Jeter sue Mayo Clinic for wrongful death, they did say the couple could pursue claims of loss of
irreplaceable property, breach of fiduciary duty, and "bailment’’ — failure to return property.
The Jeters sued after the clinic lost or destroyed some embryos the hospital was supposed to transfer to another doctor. Geoffrey Trachtenberg, the couple’s lawyer, said it is also possible Mayo may have given the embryos to the wrong people.
Appellate Judge Donn Kessler, writing for the court, said some statutes protect implanted embryos and fetuses. For example, he said, it is a crime to knowingly or recklessly cause the death of an unborn child; another statute requires that abortionists try to preserve the life of a fetus that is delivered alive.
Kessler said, though, the laws that allow civil suits presume that a fetus becomes a person at viability. And he said that eight-celled cryopreserved pre-embryos stored in straws "are incapable of developing into children via an extrauterine process.’’
And the judges refused to accept the Jeters’ argument to extend protection of wrongful-death laws to "potential viability,’’ saying that decision is up to the Legislature and not the courts.
Kessler also said allowing wrongful-death lawsuits over unimplanted embryos presents special problems. For example, he said, it is unclear how long an embryo can be kept in a frozen state.
"If the female donor decided she did not want another child, the clinic would be faced with the dilemma of allowing the pre-embryos to be irretrievably damaged by indefinite storage and face potential liability for a wrongful death,’’ Kessler wrote.
Thursday’s ruling does not alarm John Jakubczyk, attorney for Arizona Right to Life, despite the court’s conclusion that an unimplanted embryo is not a person.
Jakubczyk said while he believes life begins when an egg is fertilized, the right to sue is strictly created by the Legislature. As such, he said, lawmakers are free to determine for purposes of a wrongful-death suit when an embryo becomes a person.
He said the situation, at least from a legal standpoint, becomes more complicated with an unimplanted embryo.
"Personally I have a great deal of difficulty separating the notion of ‘conception’ and ‘conceiving’ with the oldfashioned way of doing it,’’ he said. Jakubczyk said that, if nothing else, when couples agree to in vitro fertilization "there’s almost an assumption of risk’’ that something can go wrong.