Page 7 - Cleveland Vol 5 No 3

as involving medical claims because the plainti s would have to le an af- davit certifying that the cases were meritorious, the statute of limitations would be shortened, and the damages would be capped. However, the court rejected UH’s theory of the case be- cause it determined that the storage of eggs and embryos was not a medical procedure. e medical process was the extraction of the eggs because that is the time at which physicians per- formed procedures on the patients.
THE CRUSADERS
While the other plainti s were pre- paring for a battle in court. Rick and Wendy Penniman were planning fu- nerals for the three frozen embryos they lost as a result of the storage tank malfunction and waging a campaign to have them recognized as children. ey led a wrongful death action against UH. Judge Stuart Friedman dismissed their claim because it was not permissible under Ohio law. In 1985, the Ohio Supreme Court ruled that a viable fetus is a person and, life begins when that fetus is conceived.
Werling v. Sandy, 476 N.E. 2d 1053 (Ohio 1985). Undeterred by Judge Friedman’s ruling, the Pennimans ap- pealed to the 8th Ohio District Court. In a 2 to 1 decision, the Court decided that embryos are not “human entities” under Ohio law. Bruce Taubman, the Pennimans’ attorney, vowed to take the case to the United Supreme Court.
Taubman, relied on arguments set forth in a law review article written by Rita Lowery Gitchell. Ms. Gitch- ell claims that an embryo should be considered a person because scienti c experiments have shown that a zygote has attributes that are di erent from the gametes used to create it. us, she thinks that life begins at fertiliza- tion. She criticizes courts for treating embryos like property instead of per- sons. She contends that, based upon new scienti c ndings, courts should change their determination of when life begins. Ms. Gitchell mischaracter- izes the law’s treatment of embryos. In Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992), the court acknowledged that, because an embryo has the po- tential to become a person, it should
be treated di erently from other types of property. Ms. Gitchell’s reasoning is also awed because she wants to give an embryo the same status as a viable fetus. In doing so, she wants the law to conclude that a woman’s right to body integrity disappears the moment her egg is used to create an embryo. e scienti c evidence on which she relies indicates that zygotes appear to have the ability to undergo development. But, until they are implanted, they are unable to develop into human beings.
e Critical Issues
UH will probably settle the major- ity of these cases. Nonetheless, this incident brings the spotlight on two critical issues—what should be the le- gal status of an embryo and what are the appropriate damages for persons who have lost something that they consider to be priceless.
BROWNE LEWIS IS THE LEON M. AND GLORIA PLEVIN PROFESSOR OF LAW AT CLEVELAND-MARSHALL COLLEGE OF LAW. SHE IS A RECOGNIZED EXPERT ON IS- SUES INVOLVING REPRODUCTIVE RIGHTS, ASSISTED REPRODUCTIVE TECHNOLOGY, AND PHYSICIAN-ASSISTED SUICIDE.
in 2017 and 2018