02 Apr This couple insists their destroyed embryos are people. But, it’s not about politics

Rick and Wendy Penniman struggled to move on after their third miscarriage.

And then they miscarried again.

And again.

In less than three years– a total of nine failed pregnancies.

Then their miracle happened. In 2015, Wendy gave birth to a son, Beau. She’d tried a drug called Neupogen, which her doctor said could help solve immune issues related to her failed pregnancies. Then, after two more miscarriages without the drug, she took Neupogen again and gave birth to a daughter, Molly.

The Pennimans thought their pregnancy problems were finally solved. They planned to have their next child through in vitro fertilization and had three embryos frozen at a fertility clinic near Cleveland, Ohio.

Then, tragedy struck the clinic in 2018. University Hospitals wrote a letter to patients, saying more than 4,000 frozen embryos belonging to 950 patients – which included the three belonging to the Pennimans – were likely not viable, due to a storage tank failure.

Dozens of lawsuits followed. The Pennimans sued too – but, unlike other plaintiffs, they argued that life begins at conception and that an embryo should be considered a “person.”

Their lawsuit caused a stir. Some people sent hate mail and angry Facebook messages and even death threats, while pro-life Christians applauded and thanked the Pennimans for standing up for preborn life.

But to Wendy Penniman, claiming her embryos are people wasn’t about politics or promoting conservative values. On the contrary, Wendy said she and her husband are politically “very liberal,” and she believes women have a right to an abortion. She said the lawsuit was about wanting a family – and holding the fertility clinic accountable.

“I sacrificed so much of my life and my identity and emotions and all of these types of things to get to this point,” she said. “And then on top of it, they figured out what medication I needed to have a successful pregnancy, right? So to me, in our eyes, those were children, right? There was no reason for an implantation to not be successful at that moment.”

A trial court ruled against the Pennimans, and an appeals court agreed with the trial court in a 2-1 decision that “an embryo that has not been implanted into the uterus of a woman does not constitute ‘a distinct human entity’ and is therefore not entitled to the rights and protections of a person.” Instead of appealing to the Ohio Supreme Court, the Pennimans opted to settle — under terms they can’t disclose — as they didn’t want to endure years of further litigation.

Rick Penniman said regardless of whether a person is pro-choice or pro-life, he thinks both sides can come together on protections for IVF embryos.

“I think both can agree that there needs to be better care,” he said. “If you consider it life or if you consider it just property, they need to do a better job of taking care of it.”

Controversy in Alabama

The Pennimans’ case is reminiscent of a more recent, highly-publicized case against an Alabama fertility clinic, where an embryo storage area allegedly was left unsecured, enabling a hospital patient to enter, remove several embryos from a freezer, and drop them on the floor, destroying them. The patients to whom the embryos belonged sued the clinic, eventually leading the Alabama Supreme Court to rule that frozen embryos should be considered children and that the state’s Wrongful Death of a Minor Act applies to them.

The ruling prompted three IVF providers in the state to pause services, setting off a political firestorm, with advocates denouncing the court ruling as “devastating” and “cruel,” and unleashing a fresh wave of indignation over the U.S. Supreme Court’s decision to overturn Roe v. Wade, which led to near-total abortion bans in several states, including Alabama.

Shortly after the Alabama Supreme Court ruling, the state’s majority-Republican legislature and Republican governor passed a new law shielding fertility clinics from legal liability. News media outlets characterized the legislation as a positive development — ensuring continued access to IVF in Alabama. Two of the three shuttered clinics immediately announced they would resume services.

But the legislation is problematic for IVF patients whose embryos are damaged or destroyed at a clinic, as it limits their ability to sue.

“It’s very sad that for a state that claims that embryos are human beings, that the legislature’s response is not to protect those human beings, but to immunize fertility clinics,” said attorney Adam Wolf, who represented some of the plaintiffs in the Ohio clinic accident. “It is the opposite of what you would hope a legislature would do that thinks that embryos are humans.”

Wolf added that the Alabama legislature is “giving the green light to fertility clinics to act with impunity, to do whatever they want with people’s embryos, with no accountability and no protection for patients.”

Wolf is currently litigating a number of cases on behalf of another group of IVF patients, alleging that a culture solution made by fertility company CooperSurgical killed their embryos. The company issued a recall in December, citing “impaired embryo development.”

CooperSurgical did not respond to a request for comment.

Wolf said even though most states don’t recognize embryos as human beings, they are still “incredibly precious, important property that people see as their children.”

“Whether you see embryos as human beings or as property, naturally, the parents – or would-be parents – see their embryos as their future children,” he said. “And fertility clinics around the country need to treat those embryos with the respect and diligence that they deserve.”

[…]

Naomi Cahn, a co-director of the University of Virginia Law’s Family Law Center, said regardless of whether embryos are considered children, IVF patients need to have a remedy in place for clinic negligence. The new Alabama law, however, appears to grant legal immunity to clinics for claims like implanting the wrong embryo or dropping an embryo on the floor, and it may even immunize healthcare professionals from medical malpractice claims.

“I mean, it’s pretty incredible,” Cahn said.

Cahn added that she herself has gone through IVF.

“You trust the clinic to keep your precious embryos secure,” she said. “Having gone through IVF, if those embryos had been destroyed, what would have compensated me? Another IVF cycle would not have been compensation for that.”

Alabama Governor Kay Ivey, in a statement, called Alabama’s new IVF law a “short-term” measure, and said she anticipates “there will be more work to come.” […]

IVF and Abortion Politics

Wendy Penniman said back in 2018, she didn’t expect her IVF journey to collide with the abortion rights movement.

“The liberal women — you know, friends, family, whoever — were sending messages just like, ‘What are you trying to destroy for the rest of us?’ And it was so bizarre to me,” she said.

But even after the recent controversy in Alabama, she says she doesn’t regret “fighting for our kids.”

“I always knew that I wanted to have kids,” she said. “And so, in my mind, I’m not looking at it just at this cellular level. I’m looking at it as my future and my children’s siblings.”

Regarding the Alabama law, she said she believes “there has to be accountability.”

“I think with the proper language, hospitals and medical professionals in fertility can be held accountable and still do their jobs.”

Full Story: ABC 7 WJLA March 29 2024