Outdated IVF Laws Turn Pro Choice Parents Into Embryo Defenders

On a Friday night in March, Wendy Penniman came home from work to her cookie-cutter, two-story home to find her husband Rick sorting the mail. He handed her an unassuming unopened letter addressed to her from University Hospitals in Cleveland. This was not a surprise — she and Rick had spent five years going through assistive reproductive therapy at the facility about 35 minutes from their tightly packed subdivision in Broadview Heights. After a round of in vitro fertilization and two medication supported pregnancies, resulting in the Pennimans’ son and daughter, the couple had opted to store three viable embryos at the University Hospitals Fertility Clinic. Penniman opened the thin envelope in the mudroom as Rick prepared the kids for dinner, ushering them through a cheerful kitchen decorated with plants and a chalkboard “Drinks Menu.” There was a single-page form letter in the envelope. It informed her that, due to an accident at the clinic, her embryos were no longer viable.

In their 40s and with a history of fertility problems, the Pennimans’ plan to have another child was suddenly rendered irrelevant. Their growing family would grow no further.

“It wasn’t even signed by anyone,” remembers Wendy, who was both numbed and appalled by the businesslike manner in which the news was delivered.

“She was almost in miscarriage mode,” Rick recalls. “And I told her a process had started. A legal process had started with us and a process had started with them and it’s going to take a long time.”

An IT tech with a local bank and a pole vaulting coach at the local University, Rick is pragmatic. He monitored his wife’s grief as he had after many lost pregnancies over the years. But he understood that collective legal action was inevitable.

The Pennimans’ embryos were just 3 of 4,000 that had been destroyed when admittedly neglected equipment at the fertility clinic lead to the failure of a cold storage vessel. The Pennimans immediately brought a suit for damages along with 40 other couples individually suing the clinic. Immediately, it became clear that the largest barrier facing the couples seeking damages was not hurdles erected by the legal process, but the law itself. Under state law, the embryos were treated as property destroyed in a freak accident.

I told her a process had started. A legal process had started with us and a process had started with them and it’s going to take a long time.

For the Pennimans, the embryos represented future children, but the clinic would argue that they were more analogous to property. The Pennimans launched and lost a wrongful death suit. The trial judge found that the Pennimans’ lacked a claim for relief under Ohio law. The Pennimans then took the case to Ohio’s 8th District Court of Appeals. On May 8th two of three judges ruled against the appeal saying that the lost embryos could not be considered persons in Ohio because under state law personhood was determined by viability, or the ability to survive outside the womb without support. Given the embryos were being cryogenically preserved they did not meet the definition.

The Pennimans intend to appeal again with the understanding that a legal victory would have profound and unpredictable legal and personal consequences. They claim laws in place are, in essence, being used to make rulings about processes that they were not designed to address. This argument has gained some traction with legal experts and judges as well as a host of political players.

The complicated landscape the Pennimans are navigating is defined by a question that lawmakers haven’t answered and cultural norms haven’t resolved: How do you reconcile the business of ART with the ineffable emotions of having children? On one hand, it seems ridiculous to treat a collection of cells as a living person afforded all the rights of a citizen. At the same time, it seems inadequate to treat an embryo like a consumer good.

The Pennimans aren’t the first to try and establish personhood for embryos through the legal system. But their direct legal approach is unusual. The common practice among anti-abortion activists has been to advocate for or pass personhood laws. These laws are inevitably challenged by organizations like the ACLU. Higher courts end up weighing in. A 2012 Oklahoma personhood ballot measure was challenged before receiving a vote and was unanimously rejected by the Supreme Court. But while pro-life activists have largely worked to establish rights for embryos developing in the womb, the Pennimans are fighting for embryos that developed through assisted reproductive therapy and placed into cryogenic stasis.

Since 1978, assisted reproductive technologies (ART) like in vitro fertilization have increasingly been used by couples to conceive and start families. It’s estimated that nearly one percent of all babies in the United States are a result of some form of ART. In terms of numbers, there were 284,385 cycles of ART performed at clinics reporting to the CDC in 2017. Those cycles resulted in 68,908 live births. In 87,535 of those cycles, eggs or embryos were banked for future use. In the United States alone, it’s estimated that there are at least a million embryos currently in storage.

We don’t really have a good mechanism in our laws yet for situations that prevent people from moving forward in their reproductive plans

While some anti-abortion activists are agnostic when it comes to the morality of embryo storage, there is also a current of strong opposition to ART in pro-life circles. Part of that opposition has to do with the fact that non-viable embryos are frequently used for scientific research. A statement on IVF by Massachusetts Citizens for Life, argues that “From a pro-life viewpoint, IVF is not permissible given proper respect for human life. The process is far too wasteful of human life.”

This puts the Pennimans, who are strongly pro-choice, in the unexpected position of echoing an anti-abortion argument. They are doing this not because of their fundamental beliefs about life beginning at conception, but because of a gut response to the loss of a potential child. They feel strongly that they didn’t just lose property. And there are no laws on the books that specifically address their circumstance— or any number of other potential conflicts that could arise from the ART process. The legal system has not adjusted to the way that modern babies are made and the consequence is legal and emotional chaos.

In reproductive law, legal action around cryo-preserved embryos has historically fallen into two categories. Individuals sue one another to establish ownership of embryos created together or couples (like the Pennimans) sue fertility clinics for destroying genetic material. The legal precedents that have emerged from these conflicts are fuzzy.

In a landmark case in Missouri, McQueen v. Gadberry, a divorced couple fought for control over the embryos that were created during their marriage. Jalesia McQueen was seeking the right to implant the embryos and carry them to term, arguing that they were tantamount to future people if allowed to gestate and be born. Her ex-husband characterized the prospect as forced procreation and argued the embryos weren’t people. The court ultimately sided with the husband, finding that the “the frozen pre-embryos are marital property of a special character,” and awarding joint custody, meaning they could not be used or destroyed without the express consent of both parties. The decision was upheld in appeal.

In a case followed more closely by the tabloids, the law swung towards personhood. In 2014, Nick Loeb took ex-wife and Modern Family star Sophia Vergara to court to retain embryos that they had created together via a surrogate. Loeb brought the ongoing suit against Vergara to Louisiana, where state health statute defines embryos as “a juridical person until such time as the in vitro fertilized ovum is implanted in the womb.” Leaning into the law, Loeb named the embryos and framed the dispute as a custody battle, one which is still raging and one which Vergara appears to be losing.

Bruce Hale is a lawyer focusing on ART law and co-author of the American Bar Association publication Assisted Reproductive Technology: A Lawyer’s Guide to Emerging Law and Science, Third Edition. He says that state statutes related to embryo personhood — notably the Louisiana law and a similar law in Arizona — are attempts to fill a large gap in ART law.

But the politics of personhood laws cannot be disentangled from abortion rhetoric. They are perennially introduced by conservative lawmakers seeking to end abortion. Just this year Republican lawmakers in Mississippi, Missouri, and Montana proposed bills that would define embryos as persons at the moment of fertilization. The notion of viability is being strategically eliminated.

“With reproductive medicine, we do have standards of care and we do have mechanisms for medical malpractice, but we don’t really have a good mechanism in our laws yet for situations that prevent people from moving forward in their reproductive plans. In other words, reproductive torts,” Hale explains. “Scientifically, any fertility doctor will tell you just because you have an embryo doesn’t mean that the embryo will grow into a child. Embryos have different levels of quality and potentials in terms of developing. So calling embryos people is problematic because many of them would never be people if they were transferred to a uterus.”

From a legal standpoint, Hale explains, there is simply no way to address individuals for whom reproduction has been “foreclosed.”

“The parties are looking at finding a way in the law to really punish these fertility clinics for destroying their chances of becoming parents,” Hale says. “That’s a pretty horrible situation that they’re in. They trusted this facility with their genetic material and they’ve now lost it due to the misdeeds of the facility.”

Those are our kids. What could have been our family was stolen

In Ohio, where the Pennimans live with two former embryos named Beau and Molly, the state legislature has lately pursued a pro-life agenda, becoming one of six states to have passed a fetal heartbeat bill. Now, the Pennimans lawsuit could potentially open up a new front in the war on abortion by setting a legal precedent for embryonic personhood — at least within the context of ART therapies. The Pennimans put a sympathetic face to the notion of embryonic personhood. Their beliefs on the subject are informed by experience, not faith.

The irony is not lost on Wendy Penniman, who describes herself as a liberal who is raising her kids to share her values. “I want my daughter to wear a pussy hat,” she laughs. When the Ohio legislature passed the heartbeat bill, she says she wept.

As her story received more local and conservative press, Penniman began receiving prayerful Facebook messages from pro-choice Catholics who support her lawsuit. She now also receives hate mail from ideological progressives who see her lawsuit as a potential assault on women’s healthcare.

“If someone like me had been trying to preach to me 10 years ago that those were kids, I would have said, ‘Oh my god, no they’re not,’” Wendy says. “But man has my perspective changed after what we’ve been through. Those are our kids. What could have been our family was stolen.”

To understand how the Pennimans reached their place of deep cognitive dissonance, it helps to track her and her husband’s journey through ART. That history reveals the intense emotional stakes of trying to build a family when you’re faced with seemingly insurmountable barriers and the worry that it could all be taken away in an instant.

Rick and Wendy knew each other in college when they were in their 20s. Wendy, with her cascade of blond hair, emerald eyes and acerbic wit was a softball player. Rick was on the track team. Despite mutual interest in each other, life led them in different directions. After college, Wendy traveled and established a career as a scientist. Rick got married and divorced, in part because his partner wasn’t interested in starting a family. When Wendy and Rick met up again, in their mid-30s, they decided to pick up where they had left off. Wendy moved into Rick’s home. They started trying.

Despite the bland sameness of the exterior, the home the Pennimans share is as bright and energetic as the couple. I sat with them in the dining room flooded by early morning sunlight to try and understand how they came to their difficult place. The pair shared a bench and bickered playfully as they talked, the top of a Cleveland Whiskey branded barrel hung on the wall behind them.

The children were at child care, but the home felt happily lived-in. With two stories and a fine backyard abutting open space, the place feels well chosen for a family expecting to expand.

Her mom described what University Hospitals had done as an “instant hysterectomy.”

“I had my first miscarriage in 2012,” Wendy said. “There’s something wrong with me. I’m an unexplained recurrent loss patient. We’ve had all of the DNA testing. They don’t know what’s wrong. My body lacked the capability to keep the pregnancies.”

The couple experienced such a long string of miscarriages that they kept a running tally on their refrigerator. The problem wasn’t in getting pregnant. That part happened easily.

Wendy hemorrhaged one afternoon sitting on her friend’s couch. Another time, she miscarried in a doctors office and bled through her clothes. Their friends offered sympathetic words. They sent cards and suggested that when the couple finally had a baby they’d love it that much more. “By the time I had my third miscarriage, I looked at my Mom and said, ‘Save the card. I’ll just pull out the one you got me last time.’”

Wendy remembers feeling mystified by the losses — she’d looked after herself, after all — and resentful of people who were able to have children in spite of health issues or financial issues. The Pennimans had planned everything out. They were by the book. It simply wasn’t fair.

For Rick, after the third miscarriage, sex simply wasn’t fun anymore. As the couple tried to get pregnant it had to be scheduled and almost clinical. He says the pressure was so intense that days prior to the scheduled procreation attempts he’d start having anxiety attacks.

“I got to the point where I asked her not to tell me if she was ovulating. I just wanted to have sex,” Rick says. “Then when it would happen I’d question her. ‘This is because your ovulating isn’t it!?’”

It put a tremendous strain on the marriage. There was a lot of anger. Desire was all but extinguished.

Finally, a fertility doctor from University Hospitals suggested a drug in concert with IVF might allow the couple to conceive and carry a pregnancy to term. The process resulted in their seventh miscarriage. But something was different. Doctors were able to preserve and bank three embryos. The Pennimans were encouraged to think of them as an insurance policy. They were the embryos of a healthy 35-year-old, and there was a good chance that if doctors could solve the problem of Wendy not keeping a pregnancy to term, the embryos could result in healthy babies.

After trying again with the drug, Neupogen, a white blood cell booster commonly used in cancer treatments, Wendy was able to get pregnant and once again attempted to carry a child to term. It was risky. She had to get blood tests every two days to make sure the drug wasn’t loading her system full of white blood cells. Wendy toughed it out and gave birth to their baby boy, Beau.

Finally successful, the couple started considering using their embryos for a second child. Wendy was 40 and it seemed time was running out. Plus, they didn’t like the idea of the embryos not being used or donating them.

They were encouraged to keep the embryos banked as an investment in their family — healthy embryos for the future. Another pregnancy assisted by Neupogen later, the Pennimans had a second child, Molly. Their family was growing and they weren’t ready to stop. They didn’t need to. They had more embryos.

They were thinking about trying again when Beau was out of daycare.

Then came the form letter from University Hospitals.

“It was the heartache, the hopes, the dreams, the physical, mental and emotional, all packed into the embryos we banked,” Wendy says.

Worse still was how the embryos were lost. By University Hospitals own admission, it was sheer negligence. On March 3, 2018, the temperature in the tank containing the Penniman’s embryos, along with thousands of others, began to rise. In regular circumstances, monitors would have caused alarms to sound. But those alarms had been purposely turned off. The tank had been malfunctioning for some time and the embryos were scheduled to be moved to a temporary tank in a manner of days. The failure of the system wasn’t discovered until March 4, but by that time there was nothing to be done.

“We don’t know who turned off the remote alarm nor do we know how long it was off,” University Hospitals wrote in a letter of apology nearly a year after the event. “We are still seeking those answers.”

By the time the Pennimans were able to get a consultation with their doctor, they were told that due to their age, the chances of a pregnancy with another successful round of IVF were roughly 10 percent. Wendy called her mom who had seen the story on the news before Wendy even received the letter. Her mom described what University Hospitals had done as an “instant hysterectomy.”

The couple, now raising two nursing children, started grieving. Moreover, they were angry that the clinic didn’t show any signs of grieving with them. Wendy scrunches up her nose when she remembers what the clinic called the embryos. “They called them chattel,” she says. And their growing sense of disgust and fury inspired them to try to force University Hospitals to recognize their lost embryos they way the Pennimans recognized them, as children.

“In my mind, I can’t separate the fact that they were our kids. I can’t right now. I would fight for Beau or Molly that way. Rick and I would cut off a limb for them if we had too,” Wendy says.

That feeling is one that the ART industry has yet to come to terms with according to Dr. Amy Michelle DeBaets, a professor of bioethics in reproductive healthcare at Oakland University William Beaumont School of Medicine.

“We’re functioning to create and manage embryos as medical treatments. On the other hand, we’re talking about potential humans here. Finally, we’re talking about a consumer product,” she says.“Those three perspectives clash with one another.”

“On an ethical level, people see these embryos as their potential children. So there’s a great deal more invested psychologically,” DaBaets adds. “Especially because they are not replaceable.”

It was the heartache, the hopes, the dreams, the physical, mental and emotional, all packed into the embryos we banked

Considering that some embryos are, in fact, irreplaceable due to the situations of would-be parents, there has been very little oversight of the industry that looks after them. Part of that has to do with the fact that when people have attempted to regulate the industry, regulations have gotten tangled up in the lines drawn by anti-abortion and pro-choice activists. That has a tendency to chill any kind of constructive conversation around the issue of how to classify embryos in the ART system.

DaBaets argues that there needs to be a new classification — one that allows clinics to recognize the irreplaceable human potentiality of embryos while also recognizing that when thousands of embryos are destroyed it’s not a mass murder on an epic scale, as some anti-abortion activists claim.

“What to call this frozen genetic material is a really complex issue that courts have grappled with for a long time,” explains Bruce Hale says. “Where most states and courts have landed is that we’re not going to call this stuff property because it has a special character. They give it a designation of property, but a little bit more. What is that little bit more? We don’t really know yet…. If we take it to a logical conclusion, what does it mean if the parents die? Who inherits? Do embryos inherit? Who is entitled to social security payments? Do embryos get social security payments? It raises so many weird questions that we just have not grappled with.”

Wendy Penniman struggles with finding a place to stand in the impossible tension between believing she lost her children and believing women should be able to have abortions.

“The clinic is in the business of helping us create families. And if you are in the business of creating lives, then they need to be treated as patients,” she says. “I fight with it a lot. We’ve intentionally gone to a doctor to create life. The purpose of this was to be born.”

There may not be a middle ground. And that makes the issue a political nonstarter for lawmakers who’d rather not stake their career on trying to legislate a solution nobody will like. That leaves the Pennimans and parents around the country in similar positions, like the hundreds who lost embryos in a similar accident in San Francisco, in a difficult position.

Nonetheless, the Pennimans are moving forward. In order for the Pennimans wrongful death suit to be recognized, they require a declaratory judgment that their embryos were people who could die in a wrongful manner. After the dismissal of their case by the trial court and by Ohio’s 8th District Court of Appeals, the couple is pinning their hopes on a dissent. Justice Sean C. Gallagher argued against the 8th District ruling, suggesting that the Pennimans were in a kind of judicial limbo. He stated that the criminal statutes as written were inadequate to address their case because it was a novel situation under Ohio state law. He argued that the Pennimans should be allowed to “litigate the matter to conclusion.”

That’s exactly what the Pennimans intend to do. They will attempt to appeal their case to the Ohio Supreme Court.

As the case moves forward with the slim potential to upend the legal understanding of what a human is, the Pennimans life in Broadview Heights looks for all the world like that of the typical American family. A chalk butterfly spills out from underneath the garage door. Schedules are coordinated for kids to be picked up from childcare. Children sneak in at night to snuggle with their parents and plants crowd the foyer. But Rick and Wendy are haunted by a loss that seems immediate every time they look at their healthy, happy children. look at their kids.

“I can’t help but wonder, ‘What if you were the one that I lost?’” says Wendy. “What were the other ones that I lost?”