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February 07, 2005
Interesting ruling
...from a Cook County judge last Friday
An aspiring mother's fertilized egg mistakenly discarded by a fertility clinic was legally a "human being," a Cook County judge ruled Friday, clearing the way for a Chicago couple to file a wrongful-death suit.
If the judge's ruling stands, experts said, it could frustrate the work of fertility clinics and the future of stem-cell research. But attorneys who disagree on the question of when life begins said the ruling likely would be overturned.
"As an anti-abortion activist, I was pleased to see the judge's initiative," said Victor Rosenblum, a professor at the Northwestern University School of Law. "But as a lawyer, I can't say that he is on solid ground in his reasoning."
Posted by Amy Welborn | Permalink
Comments
Whether something is a human being is not a legal question - it is a biological/scientific one. Thus, the appellate court, if it is doing its job, would have to uphold the factual finding of the court if any reasonable person could find that the fetus is a human being based upon the evidence presented (but I am not holding my breath).
Whether a certain type of human being (or at a certain stage) is a legal person is the legal question to be answered. The case could be decided either way without having to deny that the fetus is a human being; they would only have to deny it is a person.
Posted by: c matt at Feb 7, 2005 1:17:20 PM
"But as a lawyer, I can't say that he is on solid ground in his reasoning."
If the ruling simply states that as a matter of fact the judge finds the fetus is a human being, then I am somewhat disappointed at the professor's statement. The judge is on very solid ground in his reasoning (in fact, impeccable). It is not his fault that most appellate judges and other legal scholars can't understand fundamental concepts such as the difference between a factual determination and a legal one (or deliberately ignore such distinctions so they don't have to deal with the sticky consequences).
Posted by: c matt at Feb 7, 2005 1:21:15 PM
Legally, in order to sustain it as a "wrongful death" case, the court would need to find that the embryo is a legal person as such a claim arises under the Probate Act for the benefit of the estate of the decedent.
Posted by: Johntbenz at Feb 7, 2005 1:39:24 PM
It is too bad, in my opinion, that a case was brought and a ruling was made and I see it as a defeat for the recognition of the embryo as "living". When it is overturned, as it will be, supporters of embryonic stem cell research will point to that overturn as "proof" that the embryo should not be regarded as life. The case for destruction cannot be won scientifically but here is a real legal danger. I noticed the odd use of the discredited term "pre-embryo" in the judge's ruling. People who know the issue don't use that term unless they are arguing that there is no "person" or "life" for the first few weeks. Frankly, I wonder about this case. Was it an attempt, by pro-destruction interests, to force the issue into court for a ruling that will eventually go their way?
Posted by: Dudley at Feb 7, 2005 2:08:47 PM
c matt-
I don't think the court's ruling includes any factual findings. Though I haven't seen the ruling, I believe it is a ruling on a motion to dismiss.
Posted by: mike at Feb 7, 2005 3:54:40 PM
If it is a motion to dismiss, I assume that the opponents of the fetal life claim brought it. At this point, then, the judge must at least think there is a fact issue as to whether the fetus is a human being. Seems that if he wanted to dismiss it, he could have held that, even if it is a human being, a human being at that stage is not a person, therefore there is no claim. It would force the courts to take the not necessarily inconsistent, but extremely counter-intuitive and potentially dangerous position that human beings are not persons at certain stages of their life. Essentially, that has been the practical position of the SCOTUS since Roe, although they have not had the legal caj---s to state as much.
At this point, it would not normally be an appealable ruling. Chances are, it may never see the appellate courts if it gets settled, etc. At this point, its really a "non-ruling" - the court merely recognizes that, as a matter of law, it cannot state that the fetus is not a human being, therefore it cannot dismiss the case. At least the court is keeping an open mind.
Posted by: c matt at Feb 7, 2005 4:13:10 PM
But when the couple was ready to conceive that June and asked for access to their fertilized egg, they learned it had not been put in frozen storage, but was mistakenly discarded
There is so much error and ignorance on both sides of this, its a wonder that anyone will ever get it straight. By fertilizing the egg, they already have, by definition, conceived. Re: other snippets from the article - Whether a fetus is a human being is not something the legislature or court can decide. It is simply a biological fact. They can decide what rights such a human being will or will not have.
Posted by: c matt at Feb 7, 2005 4:20:43 PM
Cmatt, the judge's finding that the embryo meets the definition of person within the particular state law on wrongful death is a conclusion of law.
A finding of fact in that context would have been the determination of whether or not the embryo was continuing to develop at the time it was frozen (suggesting the embryo was still "alive") or whether the development and cell division had arrested (suggesting the embryo was "dead")
Posted by: ajb at Feb 8, 2005 11:00:04 AM
