Judge Jeffrey Lawrence II of Cook County, Illinois, ruled that a couple could sue for wrongful death because a fertility clinic destroyed their embryo. He wrote: “Philosophers and theologians may debate, but there is no doubt in the mind of the Illinois Legislature when life begins. It begins at conception.”
Alison Miller and Todd Parrish hoped to conceive a child with help from the Center for Human Reproduction, but the one fertilized egg the couple created was thrown out “in error” by a clinic worker.Friday, Judge Jeffrey Lawrence II said “a pre-embryo is a ‘human being’ … whether or not it is implanted in its mother’s womb” and the couple is entitled to seek the same compensation awarded to other parents whose children are killed. (Source)
How can this be? If the Illinois legislature deems that life begins at conception, why is legalized child killing on the books? If life begins at conception, then mass murder is occurring every day, isn’t it?
Not according to the law. The couple has a wrongful death claim in the destruction of their “embryo,” not the murder of their baby. Wrongful death is a tort (Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.). The fertility clinic breached its duty of care to the patients. It was not a criminal act to destroy the embryo, regardless of what Judge Lawrence says about life beginning at conception.
In the eyes of the law, no one in this scenario has committed murder. The “frozen embryo” was a human being for purposes of the Wrongful Death statute. Unfortunately, this decision doesn’t mean what pro-lifers think it means, although it will likely have implications in the stem cell debate.
Regular readers know how I feel about child killing, and if calling abortion “child killing” doesn’t clue in readers unfamiliar with my blog, see the child killing category.
I sound uncharacteristically dispassionate about this, I’m sure, and here’s why. Many states have laws against killing unborn babies. The law in Illinois:
The killing of an “unborn child” at any stage of pre-natal development is intentional homicide, voluntary manslaughter, or involuntary manslaughter or reckless homicide. Ill. Comp. Stat. ch. 720, §§5/9-1.2, 5/9-2.1, 5/9-3.2 (1993). Ill. Rev. Stat. ch. 720 § 5/12-3.1.
It’s a crime to kill unborn babies under the statute, but “murder” doesn’t show up anywhere. It would seem that vacuuming a baby out of the mother’s womb is at the very least an “intentional homicide,” if not “voluntary manslaughter.” That’s not what the law has in mind, however. Why?
Here’s my assessment: An unborn baby is human only if the mother wants him. If she doesn’t, at any stage up to the legal limit of 32 weeks, she can have the child killed in her womb and get on with living. From 20-32 weeks, “partial birth abortion” is available. I won’t make you ill by describing the “procedure” here.
(Hat tip: Prolife Blogs, which has links to the story and other bloggers.)
Read more about tort law. Other sources: CNN — “The Most Busted Name in the Business,” ABC News, Yahoo! News…
This is the first of two non-Eason Jordan posts in the past few days, and I’m sorry that it’s somewhat pessimistic. Perhaps the next one will be uplifting. In the meantime, read the other non-Eason Jordan post.
Note: See the post below for the latest on Eason Jordan. The most recent information will appear at the top. As always, please e-mail exclusive information only.
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This is a good step to rationalizing the treatment of the unborn. A mother should be able to determine if their unborn child is a child. Once they make that determination we can then give state protection for that individual. We can also give benefits we give to other children. A national standard like this would be a great step forward.
This would be progress because I would stop women being forced into abortions which takes away their right to choose and their child’s right to life as commonly happens in china and the middle east.
I am not a religious conservative like you, I am closer to a libertarian but science has shown us that a fetus can survive outside the womb as early as 18 weeks or so. So its absolutely wrong to take the life of a 18 week old fetal/citizen without due process.
There is also a significant percentage of citizens who believe life begins at conception. I think its important that as a society we respect their views. One way we can due that is by as a society trying to reduce the number of abortions by 95% or more as I proposed on my blog.
I think President Bush has reached to the core of the issue when he said to paraphrase we need to change out culture so it respects human life. We have to move to a society that understands right and wrong so it can make rational laws that support what is right and discourages what is wrong.
Anyway here is my post about how we can truly make abortion rare.
http://tswe.blogspot.com/2005/02/reducing-number-of-abortions-by-95.html
At common law — the general law of most English speaking countries in the absence of any statutes changing it — abortion was not murder. In order to be murdered, you had to be born. Abortion was a crime (if it took place after quickening), but it was not murder. One may speculate that questions of proof had some influence in the distinctions here.
The basic concepts of law change slowly and statutes tend to add and take away piecemeal, without re-thinking the underlying philosophy. The apparent philosophical inconsistency of Illinois law is a product of the common law, 19th century statutes, and Roe v. Wade, plus,probably, some 20th century statutes or judge made law increasing fetal protection when the mother wants the child. If the whole has a patchwork character, that’s only to be expected.
a baby is the only thing on earth whose very essential nature is altered by the whim of another person. A rock is a rock, no matter how badly I want to believe it is a tree. But a baby is a baby for one woman and a tissue mass for another, depending on whether it is “wanted”.
It is utterly irrational to say, let alone to enshrine in law, that the definition of a thing is dependent on whim. Things ARE what they ARE, folks. A rock is a rock. A baby is a baby. Reality is tough sometimes, but that doesn’t mean we should endorse fantasy.
Dave – That’s my stand on it, too. How the pro-choice and anything-goes crowd can be so sure that this “tissue” is not human and destroying it is not murder is beyond my comprehension. Science can only take us so for in these things. That’s where my belief in a Creator, the living God, separates me from those with no regard for the sanctity of human life.
La Shawn:
As an Anesthesiologist, I have contact with some doctors doing In Vitro Fertilization.
Often, there are more embryos produced than wanted – so some are discarded or frozen. Destroying some embryos is just a part of it.
For the people who are suing for “wrongful death of an embryo” – they are being inconsistent.
They willfully would destroy some embryos, but when one is acidentally discarded they are upset.
I’m pretty weak on human physiology, but I think there’s no such thing as a pre-embryo. I realize that’s what anti-lifers call the baby when they’re younger than 14 days old, but still, how does a term for non-existent stage keep getting used?
It goes how, zygote => embryo, right?
Scott, you can’t make science an impartial arbiter. Your standard must be rooted in something bigger than science.
Just a dozen years ago, fetuses would not survive if they were less than 21 weeks old, but now they can at 18. Does that mean in the last decade that the children born a dozen years ago at 20 weeks were not human, but now they are? If they are able to survive ten years from now at 14 weeks, will the definition of what is human change to suit this advance?
No. We need a higher source than science to make this determination.
Scott does make some good points in his blog post. I think some of what he suggested about adoption and so forth is also part of President Bush’s plan on reducing abortions. I can’t remember which speech it was, but I think GWB said something about improving the counseling that women receive prior to deciding on abortion and also improving ties/communication between abortion clinics and adoption agencies to try to save more children. Please don’t quote me on any of this because I’m totally paraphrasing from memory fragments.
While I do agree that killing unborn children is wrong, I think outlawing all abortions wouldn’t gain the desired effect of eliminating abortions…just like outlawing guns doesn’t keep them out of criminal hands, it just disarms the honest people who will then die at an armed criminal’s hands. To use a supply and demand model, if we only outlaw the supply of abortion clinics without reducing demand, black market suppliers will emerge. With as vicious as society can be nowadays, no one wants back alley abortionists making a big return. I think we’ll be more effective if we grudgingly allow the supply to remain legal while working doggedly to eliminate the *demand* for abortions. This requires on-location counseling to make sure these women really know what they’re asking for and the consequences of it. This is where the church, if it were permitted, would make a huge difference in a place where it’s badly needed. I read in comments of a previous post that one lady worked with a group that used ultrasound to dissuade women from killing their babies; this is good. If ‘pro-choice’ wants to argue that it’s a medical issue, then shouldn’t women be required to have real medical screenings and all that other stuff that goes along with medical procedures? I think this type of regulation (requiring counseling and ultrasounds, coordination/easy access to adoption agencies, etc.) will do more to eliminate abortions than simply outlawing them would.
Sorry if this sounds “all-over-the-place,” but I’ve rambled long enough. If I’ve offended or puzzled anyone, I’ll try to clarify later.
FL Mom, some interesting comments – I certainly appreciate the economic rationale (as an economics student), but I think there are a couple holes in your argument, with all due respect.
First, outside of economics, our laws in many respects reflect ideas of right and wrong, and not utilitarian ideas of the greatest benefit to the greatest number of people. You seem to be arguing under a utilitarian framework, which is incompatible with the law. By your logic, I could say that some people are going to rob banks anyways, so we might as well work on reducing the causes of crimes like this rather than making them illegal. That’s just silly.
The law of the United States act as rules of the game that all must abide by in order for the government to be legitimate, and for the society to be just. To this end, the law should reinforce the fundamental concept of all citizens to the right to LIFE, liberty, and the pursuit of hapiness. Therefore, we do not make laws against things which are morally wrong per se, but which infringe on another citizen’s rights (which I suppose, ironically, is moral.) Robbery denies someone of their legitimate property, so it is illegal. Abortion denis someone of their legitimate right to life, so it too should be illegal.
Getting back to FL Mom’s economic argument, we must look at the whole system involved to completely understand the economics of the situation. While I applaud FL Mom’s attempt to apply economic theory to this situation (always a useful tool), it is not applied fully. Yes, it is true, even if abortions were illegal, demand would still exist for it, and abortions would still be done. However, making abortions illegal would actually reduce their number under economic theory!
It’s simple to see why. The Law of Supply and Demand states that the Marginal Benefit derived from an action will equal the Marginal Cost derived from an action. In simpler terms, this means that people do things which are cheaper, and as that activity is made more expensive they will do it less. Following this, if abortion were made illegal, the cost for suppliers would go up, since it would be harder for a supplier to enter the market and operate. Additionally, the risk of getting an abortion done in a shady place increases the cost to the demand side, since the potential for injury, and the understanding of this potential to the “customer”, goes up. Therefore, in economic terms we see a shrink in the number of suppliers, a shrink in demand, and therefore a decrees in quantity of the number of abortions “sold.”
See a post on this rationale at my website at
http://www.snipehunters.com/index.php?page=essay&num=30
And oh, great post La Shawn!
This is just another case of an activist judge making law from the bench.
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I don’t see how that jives at all. The legislative branch has been trying to curtail and/or bar abortion. The only thing standing in its path is the ACTIVIST decision in Roe v. Wade.
If both Roe and the opposite opinion are activist, then what exactly is activism?
I was under the impression that judicial activism occurred when judges tried to make law, especially law contrary to the will of the legislature.
If this judge’s opinion is activism, then I guess taking back something that is stolen from you is stealing.
I know, feeding the troll, but:
Wow, if economic theory was accurate, you’d think that the last few years of increasingly restricted access to abortion would have led to fewer abortions. Astounding how that hasn’t worked out.
The overall # of abortions (and unwanted pregnancies) are down, Cody. And it has more to do with the changes in peoples attitudes about abortion, adoption, birth control and related issues than any changes to the level of access. Which legislation has had very little to do with (access).
Thanks for commenting, everybody. I’ve been busy all day with no time to blog, and it’s good to come here see my regulars hanging out.
God almighty has an eternal plan for “all” that He and He alone has created. His unborn creation is just that, His (no matter what mankind chooses to call “it”). He also has an eternal judgement for those who destroy innocent life in the womb. His holy word, the Bible, prescribes it.
Dave! Where have you been? Welcome back.
Frank, I think you’re being a bit sweeping. You don’t know that this couple would have wilfully destroyed ANY of their embryos; a lot of people don’t. I’ve seen a fair amount of IVF paperwork myself and while a lot of people do check the “destroy excess embryos” box, quite a few choose to freeze all of them, and either thaw them out and transfer them to the uterus later or else donate them to another couple so that they (the embryos) have a chance to grow, albeit not in their genetic mother’s body. It’s a little unfair to say flat-out that “this couple would have destroyed embryos” when we haven’t gotten a look at their paperwork. Just saying.
And DLE – unfortunately, it is not yet possible to survive at 18 weeks (do you mean 18 weeks gestational age or eighteen weeks the way doctors count it? Because if the latter, then the baby would have been alive for only sixteen weeks and far too small to live outside). The earliest a baby can live outside the womb now is when it is at twenty-two weeks’ gestation. It’s true that they have managed to save babies younger and younger; hopefully eighteen weeks, and earlier, will be manageable someday. It just isn’t now.
This case is all about parents’ rights and nothing about the child’s rights. These parents probably had other embryoes destroyed that did not appear to be as “promising” as the one in question.
But the legal confusion this case illustrates is caused by the tension between parents’ rights and abortion ‘rights.’ (I posted on this on my sitea couple days ago.)Parents who lose unborn children want legal recognition and justice for their unborn children. Abortionists want no such recognition, because it interferes with their death business. We can resolve the tension by finally deciding one way or another whether the unborn have the legal right to life. If we do not decide the question one way or another, we are forced, as La Shawn suggested, to recognize two kinds of unborn people: the wanted and the unwanted, and to assign them rights according to that criterion. They will become the only class of people whose rights are endowed by their mommies.
I agree with FL Mom. Andrew, if the US operated in a vacuum, then yes your counterpoint would have more weight. The best way forward is a strategy of decrementalism. After all, this is how we got to where we are today, incrementalism on the part of pro child-killers.
The bottomline is if we can change culture as a whole, even if the law remained on the books, demand would go down and eventually, service providers would be few and far between. Furthermore, the funds to invest in R&D for improving the child-killing processes and methodology would wither away as the ROI losses mount.
On the otherhand, making it illegal across the land would not realistically remove the desire/demand for the service.
3 possible negative outcomes:
1) You have a bunch of PO’d women, upset at our govt dictating what they can do with their bodies. (newsflash, the govt already tells us what men, women & children can do w/their bodies on a daily basis and enforces it) As an actof defiance, they will violently seek out and “support” the black market.
2) Even leaving the back alley scenario aside, people would causually arrange an Abortion Holiday or a Haitian Kibosh with their travel agent. Ad pitch: “Life stressing you out, maan? Come to Jamaica, ah-hahaaa! And feel alright! Lot’s of surf & sun and you can leave your woes behind, ah-hahaa.”
3) Much like the fate of the Prohibition, we’d risk having a blowback, where over a period of few years or so, activists (whether judicially or legislatively) would determine that we overreached and need to overturn the anti-child-killing laws. Why? Because the law did nothing to change the heart.
LaShawn,
I visit your blog almost daily but haven’t “felt” any noteworthy comments for awhile (been trying to grow deeper spiritually – I sense you can relate).
This line gives me the creeps: “but the one fertilized egg the couple created was thrown out “in error†by a clinic worker.” Human life is now nothing more than a disposable commodity, and we’re all just whistling in the dark.
The clinic worker should be forced to watch one specific part of the movie “The Matrix” 1,000 times as partial punishment: the explanation of what the Matrix is.
The thing is, despite the law on the books against killing an unborn baby here in Illinois… so long as that umbilical cord has not been cut the mother will NOT be prosecuted for killing her own baby. The laws are horseshit here in Illinois.
Roe is on its way out, but whether in a year or a decade, I don’t know. Sooner if we keep noting it.
Here’s a woman fired from the NY Post for being pro-life. Dawn Eden.
nyobserver. com/pages/frontpage6. asp
(Not quite a link?) La Shawn, I think you should consider contacting her.
Interesting the difference between her, quickly fired, and Eason Jordan.
Leftist Media Bias.
LaShawn–I just emailed you a press release about an abortion-related case being filed in the Supreme Court.
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