CLEVELAND — As she sat listening to attorneys and judges discussing her lost embryos, it was difficult for Wendy Penniman not to be emotional.
“To imagine that they weren’t children at any point in time to anybody? That’s all we thought they were. They’re our kids,” Penniman said.
On Wednesday, Penniman’s case against University Hospitals went before the 8th District Court of Appeals. The couple is among 950 families who were impacted when a storage tank malfunction at University Hospitals destroyed 4,000 eggs and embryos in 2018. The Penniman family lost three embryos.
A three-judge panel heard oral arguments in the case where the Penniman family and their attorney Bruce Taubman are asking that frozen embryos be considered living persons. Each side had 15 minutes to argue their case. It is a case of first impressions.
“These embryos are human beings. The people treat them as human beings. It’s unfortunate and tragic that the hospital did not,” Taubman said in closing to the court.
Attorneys for University Hospitals arguing that Ohio law does not see embryos as human beings and doing so would lead down a problematic path.
“At this moment in time, the law is clear that an embryo is not a person,” said UH attorney Benjamin Sasse. “Even the changes that are afoot will not change the law that would make an embryo a person.”
But Taubman said modern science is advanced enough to be on the Penniman’s side.
“The time-lapse photography that shows how embryos are human beings from the time of conception,” Taubman said.
For Penniman, the legalities are one thing. Her family’s loss is another.
“I’m grateful for the fact that I’m one of the lucky ones that have children of my own right now that I get to walk away with, but they’ve still stolen something that you can’t put a price tag on,” Penniman said after court. “That’s the bottom line and they need to take ownership of that.”
Taubman said they are not seeking financial damages with this case, but are seeking an order that clarifies when life begins.
It is a case that could set precedent around the country, determining when life begins.
Browne Lewis, a law professor at Cleveland State University and an expert on reproductive issues, said this is an area that is largely unregulated.
“So these issues come up all the time. And the law has not kept up with the advancement in reproductive technology. We can do so much help people have children and there are consequences,” Lewis said. “The law hasn’t addressed those consequences. And we have to figure out, how do you put a value on something that is priceless?”
Penniman said she is willing to take her fight all the way to the U.S. Supreme Court.
It could be months before the Appeals Court judges issue their decision.