Lost UH fertility clinic embryos weren’t living persons, Ohio appellate court rules

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BEACHWOOD, Ohio -- There's a legal setback for a couple suing University Hospitals over stored embryos that were destroyed during a freezer malfunction last year, but the couple vows to fight on as they try to prove the lost embryos were living persons.

"Very long process, we'll go to the Supreme Court, they'll hear our case and we'll just battle on," said Rick Penniman, reacting to the decision.

Rick and Wendy Penniman said they are disappointed, but remain optimistic.

Thursday, they received news that in a 2 to 1 decision, the Eighth District Court of Appeals agreed with a lower court, ruling against them in a lawsuit against University Hospitals.

"To think that at some point I'm just gonna give up and say I'm done with that? It's not, it's not on our agenda," said Wendy Penniman.

Three of the Pennimans' frozen embryos were among the roughly 4,000 destroyed when a freezer malfunctioned at the UH Ahuja Medical Center in Beachwood in March 2018. They sued UH for wrongful death, claiming life begins at conception and that an embryo is legally a person.

"We've suffered eleven miscarriages total in between the two kids that we have," Wendy Penniman said.

The Pennimans have two children, three and a half-year-old Beau and one and a half-year-old Molly, and wanted more. They said doctors suggested they save the frozen embryos for the last pregnancy they planned to have.

"That was always our backup and so after Molly, this would've been the time right now that we would've been transferring those to have our third," she said.

Two judges ruled that "an embryo that has not been implanted into the uterus of a woman does not constitute a 'distinct human entity' and is therefore not entitled to the rights and protections of a person."

The third judge dissented stating "I would reverse the decision of the trial court and remand for further proceedings."

University Hospitals released the following statement to FOX 8:

"We agree with the Court of Appeals' decision to apply settled Ohio state law with regard to embryos in the context of this case."

"They were our children..you're not in the business of creating life and trying to start families with people, if you don't believe they weren't patients," Wendy said.

Continuing coverage, here.

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