Ohio appeals court hears effort to revive embryo case

CLEVELAND — Wendy Penniman listened Wednesday to 30 minutes of attorneys’ arguments about the embryos she lost, then she left an appellate courtroom in tears.

“It’s hard hearing all these legal things when it was all about what was to be our third child,” Penniman said after the 8th Ohio District Court of Appeals heard her and her husband’s case. “They’ve stolen something that doesn’t have a price tag, and they need to take responsibility for it.”

Penniman and her husband, Rick, were among more than 900 families who lost 4,000 eggs and embryos last year after a malfunction in a storage freezer at University Hospitals’ fertility clinic in Beachwood. The embryos had been stored at minus-160 degrees Centigrade when the malfunction took place March 3-4, 2018.

Nearly 100 families have sued in Cuyahoga County Common Pleas Court, accusing the hospital of negligence or medical malpractice. The Pennimans also have a suit claiming negligence.

In addition, they are seeking a legal declaration that their lost embryos were living persons and should have been treated as patients, not property.

Stuart Friedman, then a Cuyahoga County judge, dismissed the Pennimans’ second case in May, citing Ohio law that the embryos were not persons. He cited the fact that he could “only deal with rights and obligations that the law recognizes, not with emotions, feelings or beliefs of individuals.”

That prompted the Pennimans to appeal Friedman’s decision to the court of appeals. Attorneys for the Pennimans and the hospitals argued their cases Wednesday before the panel of judges Eileen T. Gallagher, Sean Gallagher and Larry Jones.

Benjamin Sasse, an attorney for the hospital, told the panel Friedman was correct in his ruling.

“The law is clear: An embryo is not a person,” Sasse said.

He echoed that in documents that he had filed with the panel. He wrote that Ohio law “consistently limits personhood to a fetus that can exist outside the womb. A frozen embryo is not a fetus. Nor can it exist outside the womb.”

Bruce Taubman, the lawyer for the Pennimans, disagreed. He stressed that the embryos lost at UH’S Ahuja Medical Center were human organisms that were entitled to basic human rights. In documents filed with the appellate court, Taubman cited scientific research that said life begins at conception.

“These embryos are human beings,” Taubman told the judges. “People treat them as human beings. Unfortunately, the hospital did not.”

Friedman has retired, and Common Pleas Judge Ashley Kilbane has taken over the lawsuits involving University Hospitals.

It could be months before the appellate panel makes its decision. Whatever the decision, it is expected to be appealed to the Ohio Supreme Court.

Penniman stood to the side as her attorneys spoke with reporters after the hearing.

“There’s no going back,” she said. “These are human beings.”