Wrongful Death and Negligent Loss of Frozen Embryos

Unlike most injury claims, wrongful death claims are created and governed by statute. Those statutes typically permit claims by certain family members for the negligent loss of a loved one or, in pure legal terms, a “person.” But what qualifies as a “person” is subject to a great deal of political, philosophical and even legal debate.

What about frozen embryos? They are genetically complete and simply “frozen in developmental time.” Given the right conditions, these embryos are potential persons and, not surprisingly, the parents of these embryos tend to have special concerns when their embryos are negligently lost or destroyed. Worse still, there are stories of such embryos (and even eggs) being sold on the black market.

While the law varies from state to state, the Arizona Court of Appeals recently addressed such a wrongful death claim in a case that I handled. In sum, the court declined to extend the definition of “person” to frozen embryos, leaving it to the Legislature to make the change, but permitted our clients to pursue other claims that, in essence, are probably on par with a wrongful death claim.