More about Lost Frozen Embryos

Linda MacDonald Glenn, LLM writing in the November 2004 issue of
Virtual Mentor created a scenario, based on a real case, that is strikingly similar to the case from Illinois presented in my last posting. Go to the link above to read the entire article. However, she writes:

This scenario is based in part on a case brought in Rhode Island in 1995. A Superior Court issued a decision this past summer [2004] that frozen embryos were not "persons" within the meaning of the wrongful death statute and therefore could not be considered "victims" or "potential children." The court did not permit the plaintiffs to seek compensation for negligent infliction of emotional distress because the plaintiffs (1) did not witness the actual loss or destruction of the embryos, and (2) they did not suffer any physical manifestation of the emotional distress.

The Court, however, did hold that the frozen embryos were a form of "irreplaceable" property and allowed the plaintiffs to proceed with a claim for loss of "unique property." Despite the "informed consent" document [which included the disclaimer that "a laboratory accident in the Clinic may result in the loss or damage to one or more of said frozen embryos." ], the Court found that there remained a question of fact as to whether or not the plaintiffs were truly informed, that is, whether they fully understood "the possible risk associated with the loss or destruction of their pre-embryos." This aspect of the case has been remanded to the trial court and parties for further discovery and is still pending.

I suspect the Illinois law (see my last post) which apparently is similar to that in some other states will be eventually found to be in error by higher courts. ..Maurice.