An Ohio lawyer, representing a couple that lost three frozen embryos in a fertility clinic storage tank malfunction, is asking a court to clarify when life begins.
Bruce Taubman is scheduled Wednesday to appear before a three-judge panel in the 8th Ohio District Court of Appeals to argue on behalf of his clients Wendy and Rick Penniman. The Pennimans, of suburban Cleveland, were among the more than 950 families affected by the tank failure last March at Cleveland's University Hospitals Fertility Clinic. That malfunction caused the temperature to rise, destroying more than 4,000 eggs and embryos.
"The key question we want to be answered is: when does life begin?" Taubman wrote in a blog post last April. "The Pennimans believe that life begins at conception, and that means that their embryos that were destroyed by UH (University Hospitals), are, in fact, people. However, the decision must be based on law, not emotion."
Seeking a legal declaration that life begins at conception, Taubman sought a declaratory judgment from the court, which would allow the embryos to be treated as persons and former patients, not property, under Ohio law.
"If the legal status of embryos is not declared to be that of a person, the Plaintiffs will not be able to bring a cause of action for wrongful death and will not be able to seek relief for the mental anguish incurred by the Plaintiffs as surviving parents," Taubman wrote in his original complaint last year.
Attorneys representing University Hospitals filed a motion to dismiss the case, which was granted by the Cuyahoga County Court of Common Pleas last year. Taubman filed an appeal, which prompted Wednesday's hearing.
"This Court must hold that an embryo that has not been implanted into the uterus does not constitute a 'distinct human entity' and thus is not entitled under the law of Ohio to the rights and protections of a person," Judge Stuart Friedman wrote in his opinion.
Parents "may believe that the embryos thus created are already persons -- but that is a matter of faith or of their personal beliefs, not of science and not of law," continued Friedman, who retired from the trial court in early January. And while they may "feel the anguish of a parent who has lost a child ... the court can deal only with rights and obligations that the law recognizes, not with emotions, feelings, or beliefs of individuals."
The grounds for appeal
CNN repeatedly tried to interview Taubman in recent days, but he was unavailable.
In his appeal, though, he argues that Ohio law is ambiguous and contradictory when it comes to defining personhood and when life begins. He also says the lower court erroneously relied on a criminal statute while looking at a civil matter.
He points out how Ohio law "does not unequivocally establish that embryos are excluded from the definition of persons." And, he writes, "the term person 'includes an individual, corporation, business trust, estate, trust, partnership, and association.' "
That broad definition, he argues, does not define the word "individual," which makes "it reasonable to believe that embryos are included within this definition of a person."
At the same time, he adds, a "person" is also defined in Ohio law as "an unborn human who is viable."
What viability means for embryos is different from fetuses and should be taken into account, he says.
An unborn human is further described in Ohio law as "an individual organism of the species of Homo sapiens from fertilization until live birth," he writes, which highlights a contradiction.
"Asserting that an organism is an unborn human from fertilization means that life begins at the moment of conception," he says in the appeal. "The law cannot ... say that the life of a human begins at fertilization and then deny personhood to those humans the law deems are not viable."
What the defense team has to say
Lawyers for the University Hospitals, on the other hand, argue that the law is clear.
"Settled law establishes that an unborn child is not a person under the Ohio Constitution and Ohio common law unless the unborn child is a fetus who can live outside the womb," they write in their appeals brief. "A cryopreserved embryo stored in a crytotank at -160 Centigrade, which is neither a fetus nor in a mother's womb, is not a person under Ohio law."
Suggesting that viability should be redefined for embryos is pointless, they add.
"Ohio criminal law defines 'an unborn human who is viable,' as a 'person' and, in turn, defines viability as 'the stage of development of a human fetus at which there is a realistic possibility of maintaining and nourishing of a life outside the womb with or without temporary artificial life-sustaining support," they say.
What this means is there is no ambiguity, they say: A frozen embryo is not a "person," nor does it have legal rights.
The defense team hopes the panel of judges in the appeals court will affirm the trial court's decision, while Taubman hopes the court will reverse the previous decision -- either allowing for further court proceedings or issuing "its own declaratory judgment that life begins at the moment of conception."
Both sides present their arguments Wednesday afternoon in court. It may be months, though, before the court issues a decision.
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