(CN) – Illinois’ Wrongful Death Act does not provide cause for a couple to sue a fertility clinic that failed to preserve an embryo, the Illinois Appellate Court ruled. The embryo was not implanted into the mother and so does not satisfy the requirement for the decedent to have the potential to maintain a personal injury action.
Alison Miller and Todd Parrish claimed that the American Infertility Group of Illinois failed to properly preserve a blastocyst, a very early form of an embryo, and did not tell them about the failed preservation until they asked to have the blastocyst transferred to another clinic.
The clinic sought dismissal, claiming that section 2.2 of the state’s Wrongful Death Act applies only to the loss of a fetus.
The circuit court dismissed, then reinstated the claims after the couple filed a motion arguing that a “pre-embryo is a ‘human being’ within the meaning of Sec. 2.2 of the Wrongful Death Act.”
Justice O’Mara Frossard found that the legislative debates establish pregnancy as a requirement for coverage under the Act.
“The Wrongful Death Act has never been interpreted to apply to situations involving the in vitro fertilization process and cryopreservation of blastocysts or pre-embryos,” Frossard wrote. “Such a cause of action could only come about through legislative action, not judicial pronouncement.”
The case was remanded to Cook County Circuit Court.