Patients whose embryos were rendered inviable in the University Hospitals fertility clinic malfunction could seek action for wrongful death if -- and it's a big if -- a judge determines that an embryo is considered a life.
"We are asking the court to declare that an embryo is a person and that life begins at conception," said Cleveland attorney Bruce Taubman. "The controversy is whether life begins at conception, therefore making an embryo a person."
Taubman is representing UH fertility clinic patient Wendy Penniman and her husband, Rick. According to their lawsuit, the couple believes that life begins at conception, meaning that embryos have the legal status of a person.
The United States Supreme Court's landmark decision in Roe vs. Wade in 1973 says that a fetus, which develops after the embryonic state, is not a person.
However, according to the Penniman lawsuit, the Ohio Supreme Court has held that a "viable fetus is a person" in Werling v. Sandy, in 1985, meaning the definition of a fetus begins at conception, and thus life begins at conception. This supports the Penniman assertion that embryos have the legal status of a person.
Read more about the 1985 lawsuit here:
Recovery for the wrongful death of a viable fetus: Werling v. Sandy
Still, legal precedent across the country states that an embryo is not a person.
"In Roe Vs. Wade, the Supreme Court held that an embryo is not a person, but that was solely for the purposes of obtaining an abortion," Taubman said. "I see this case ending up in front of the Ohio Supreme Court, and I would like to think that they are going to follow my line of reasoning and declare an embryo a person."
It was Taubman's idea to file the lawsuit, because he says the decision could allow UH patients to bring a cause of action for wrongful death lawsuits.
News 5 brought Taubman's case to Glenn Cohen, a Harvard law professor regarded as a leading expert when it comes to medical ethics and health law.
"Ohio has already had a case where they basically said you can't use this statute unless you're talking about a viable fetus, and this is so much earlier than that. It just seems unlikely they're going to succeed," Cohen said.
Cohen said that because embryos hadn't been implanted, there is no guarantee they would implant or attach. Even if they did, there is no guarantee they would result in a pregnancy or a baby.
"People say, 'When does life begin?' But that's the wrong way of asking the question. It's very clear that a fetus is alive, they're life, the question is whether they are person," Cohen said.
Cohen said based on precedent, this lawsuit will not succeed in declaring an embryo a person.
"The very precise question here is whether they are within Ohio's definition of a person for the purposes of its wrongful death statute, and here, based on existing precedent in Ohio, it seems likely the answer will be no, they are not a person through the meaning of that statute," Cohen said.
News 5 reached out to the Catholic Diocese of Cleveland in reporting this story. A spokesperson said they have decided not to issue a comment on the malfunction yet.