Sorry, confused… why would egg retrieval be illegal under the new Alabama ruling?
After egg retrieval comes fertilization. As part of fertilization a number of poor quality embryos are created, and discarded. The doctors we used would only insert “A” or “A-” embryos if memory serves. Also, the number of quality embryos that are created are sometimes greater than a family would want inserted (ignoring that is how we ended up with Octomom a number of years ago). These are the embryos that the Alabama decision seems to prohibit from being destroyed.
Hmmm… I didn’t know that. Ignorance fought.
I did know that, and that has given rise to the question “how long does someone have to (pay) to keep these in the deep freeze?”
Another question (maybe it’s been answered already): by what route/means is this decision likely to make its way to the US Supreme Court?
But it doesn’t do that either, of course. Instead, it would seem to create liability (to the parents) if the embryos are destroyed “by the wrongful act, omission, or negligence of any person.”
I’m not actually sure that this would be a particularly controversial opinion if it had been framed as one of destruction of property or trespass to chattel.
Edit: And, it specifically leaves open the question that provider could contract around any tort liability.
I’m not sure where you are getting that it creates liability only to the parents? I may have missed that part of the decision. The fertility clinic would be the holder of the embryos. Wouldn’t they have liability if they decided to destroy them, after say non-payment for storage fees?
It wouldn’t be, in my opinion. By calling the embryos “children”, it creates a whole host of issues. I doubt anyone disagrees that a facility screwing up or some rando destroying embryos against the wishes of the owners should have no consequences.
Sorry if I was clear. The clinic is liable to the parents (or the child’s estate).
The Alabama Wrongful Death of Minors Act permits “the father or the mother” (or, within six months of death, “the personal representative of the minor”) to commence an action for recovery against the person who wrongfully or negligent caused the “death of a minor child.”
Edit: Your last sentence is the interesting one. Deliberate destruction of an embryo (or other child) is only actionable, under this statute, if if was done by “wrongful act.” I think the opinion creates real uncertainty over how that’s going to work – is destroying the child for non-payment of storage fees “wrongful”? I think this is where the contractual issue comes in.
And this is what puts the clinic in an unworkable position, in my humble opinion, until we get an answer on whether contracts can protect the fertility companies. I do think this will be much ado about nothing if the fertility company can contract the liability away.
ETA: I think I did misread your original post. Sorry about that.
I don’t think you can contract away criminal liability, like … Intentionally killing people. If the embryo is a person, i can’t see how a contract makes it legal for anyone to kill it.
My understanding is this decision was addressing a civil, not criminal statute.
I am surprised but it seems this is correct.
The court determined on Feb. 16 that the clinic’s failure to secure that storage area violated the state’s Wrongful Death Act — which says an unjustified or negligent act that leads to someone’s death is a civil offense — because the frozen embryos were considered human beings. - SOURCE
As explained, this doesn’t involve criminal law. It doesn’t even involve the definition of “person” at all.
It’s about the interpretation of a specific statute that permits civil recovery for damages resulting from death of a “child” by wrongful or negligent acts.
You routinely sign liability waivers for death or injury when engaging in dangerous (and not so dangerous) activities. They are generally enforceable (although, viewed as less enforceable when involving children, and it’s a complicated state-specific area of the law).
Taken seriously, if you can sign a liability waiver for the negligent death your minor child using a trampoline , I don’t know why you couldn’t sign something similar for your embryo.
Biblically, at least, it’s a crime, but it isn’t murder.
I don’t have the passage handy; but I’m sure somebody in this discussion does.
The biblical statement shouldn’t be relevant to secular law, of course: except that at least one of the judges appears to be basing their decision specifically on religious Christian reasons. And, of course, that it provides an example of how to criminalize causing an unwanted miscarriage withoug declaring the blastocyst/embryo/fetus to be a person.
(Isn’t what’s being held frozen in IVF facilities blastocysts?)
Ditto. It was medical negligence and should be prosecutable. Whether it could reasonably be prosecuted as medical negligence or requires a separate statute addressing IVF facilities I don’t know – the latter may make sense, at least if it also covers requirements for deliberate disposal of various sorts; though it reads to me as if their contracts did that.
It also reads to me as if their contracts, and all the contractual language about disposal and/or medical research causing destruction, would be voided by the decision. A parent can’t sign over their year-old child to undergo medical research expected to include killing the child.
And these AIUI aren’t embryos, either. They’re blastocysts.
And, apparently, blastocysts. Or even fertilized eggs that haven’t reached the blastocyst stage.
Some people have waited through months and years of testing and trying to get insurance approvals to get to the point of egg extraction; and finally had their appointments made, possibly the long and potentially risky process of hormone shots in process or completed – and now the lab won’t perform the extraction; or, having performed it, won’t perform the fertilization.
Admittedly, an omnipotent God could get around that one too; possibly by making a healthy uterus magically appear. However, judging by the usual result of ectopic pregnancies, either no such god exists or else God doesn’t feel like doing so. (A very high percentage of fertilized eggs never come to term, most of them being lost before the ovulator had any way of knowing they existed. That would seem to me to argue against the idea that God wants every conceptus to be born; but I don’t think logic actually has much to do with it.)
Who is liable for murder, or negligent manslaughter, if something goes wrong during the shipping process?
If the fertilized egg/blastocyst (It’s not yet an embryo!) is legally a person, then destroying it with intention and forethought pretty much legally has to be murder.
No, of course it wouldn’t.
Because nobody intends using the trampoline to cause the death of the child.
Do you think anyone could legally sell trampolines deliberately designed so as to kill everyone who used them? And if they could, do you think parents could sign a waiver to allow their five-year-old to go play on one?
Well, no one, because this is a civil statute, not criminal one. If we are talking about who is liable, the plaintiff would have to show a wrongful act or negligence. If the transport is hit by a semi and the embryo is lost, it’s probably not negligent. If the transport company hires a known drunk driver to transport the embryo, that might cause a problem.
Perhaps. But that’s not what this case was about and it’s not what the court held.
Ok. So we’re no longer concerned about the negligent death component of the statute (which is what this case was about – and what most “wrongful death of a minor” cases seem to be about).
Do I think that the clinic can write a contract to allow it to deliberately destroy the embryos without the consent of the parents and then avoid liability to them for the destruction? I think it would be difficult. I’m not sure that’s a bad thing.
I don’t see how that has anything at all to do with whether the blastocysts are defined as persons.
And I would presume that contracts requiring consent of multiple parties don’t require such consent if party A has made all reasonable good-faith efforts to contact party B or their legal representatives but has failed.
I understand that one court’s decision is often not binding on other courts. But precedents matter. And is Alabama now in a position in which a blastocyst is legally a person in civil law but not in criminal law? That seems awkward to work out in practice.
In any case, it’s not possible to execute a clinic or imprison it; but it’s certainly possible to financially penalize it out of existence. And to bankrupt any or all individuals involved. (Maybe not whoever cleans the floors.)
I don’t see any way the decision would limit it to negligence. If the judges say the blastocyst is a person when the destruction is accidental, then they’d also have to say that the blastocyst is a person when the destruction is deliberate.
You keep saying “legally a person,” but that’s not what the court held. The court held that the definition of “child” under a particular civil statute that provided a specific civil cause of action included embryos (or whatever you want to call them). It built off a decision from 2011 that held that “child” (under that statute) included “unborn” children, regardless of stage of viability (which overturned a 1993 decision that limited “child” to post-viable fetuses (feti?)).
Could the term “child” in another statute have a different meaning? Absolutely. Could a different term in a different statute have a different meaning? Obviously. Could the legislature adopt a definition section in each statute that provided clarity on how that term was used in that section? Certainly.
I don’t tend to find “slippery slope” or “parade of horribles” arguments very persuasive. But, to the extent that we employ them, let’s begin by being clear about what the thing that will lead to future consequences actually did.
It doesn’t. But the statute is confined to deaths caused by “wrongful acts” or negligence. And your response about liability waivers was focused on deliberate death caused by people in the deliberate business of killing. And you’re probably right that there is a challenge on the waiver front in that situation. But I took it to mean that you were conceding that parents can sign liability waivers for negligent deaths (which would provide considerable comfort to an IVF facility, I would presume).
I suspect the problem there would be evaluating the value of an embryo. Would a court engage in such a practice, or would it declare it contrary to public policy to do so, not wanting to implicitly recognize a market for human embryos (which is what you do when you do when you set a “fair market value” for the purpose of quantifying pecuniary damages).
I don’t know. But IVF costs a substantial amount of money. I don’t think that a court would conclude that damages resulting from wrongful or negligent acts that destroy the embryos can’t be recovered. I would like the simplest approach would be replacement cost (plus “pain and suffering”?). But I don’t have a lot of background in tort damages calculations.
The IVF process AIUI does contain a certain amount of deliberate killing. Just like farming or gardening does. And, as with farming or gardening, some of it is probably inherent to the nature of the thing. The process will result in some percentage of unviable blastocysts, seriously damaged blastocysts, and unimplantable due to lack of womb space blastocysts. Nature deals with many of the first two categories (as well as probably some healthy blastocysts) by expelling them to die instead of implanting them; and with the third by producing fewer eggs at once or, when multiple embryos do implant, by increasing risk to each of them and to the mother. This decision appears to make it illegal for IVF to use the first technique and problematical for them to either use or prevent the second.