A woman’s embryo is suing the doctor that performed an abortion on their mother in the US.
Four years ago, an Arizona-based woman sought termination of her pregnancy. She was said to be set in her decision after she expressed no desire to have that child or any children, and was scared of giving birth.
The law in the state requires those who are pregnant and seeking an abortion to be given information about the risks associated with the treatment, as well as legal information surrounding child support should they continue with the pregnancy.
The woman signed the consent form which officially acknowledged her understanding of this information, before returning 24 hours later to the Phoenix clinic to undergo the procedure.
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Six days later, the woman returned for a follow-up appointment where staff confirmed that the abortion was successful and she was no longer pregnant.
However, two years after the woman went through with the termination, her ex-husband and presumed father of the foetus created an estate for the aborted pregnancy and filed a lawsuit on the foetus’ behalf against the doctors and clinic who carried out the abortion.
The claimant is now accusing the clinic and its staff of failing to obtain his ex-wife’s informed consent, meaning they have committed malpractice and caused the wrongful death of his potential child - violating his ‘fundamental right’ to be a parent.
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Both the man and his lawyer successfully persuaded the judge that he should be able to argue in a court of law that his ex-wife’s embryo - whom they name ‘Baby’ alongside the man’s surname in legal paperwork - is a person on the grounds of the wrongful death lawsuit.
Last week, the lawyer who is representing the doctors in their Phoenix practice, Camelback Family Planning, asked a judge to issue a summary judgement finding that the woman did indeed provide her informed consent.
During the depositions, the woman and her medical professionals ‘all said the same thing’. “[She] knew what she was doing, she was fully advised, and they did the abortion according to Arizona law,” the doctors’ lawyer, Tom Slutes, said.
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“The purpose of the statute is to make sure that the mother is properly advised, and makes an informed decision, and this young lady did.”
However, the man’s lawyer, J. Stanley Martineau, didn’t dispute whether or not she signed the paperwork consenting to the procedure. Instead, he argued that her consent was not informed as the clinic’s paperwork did not use the phrase ‘unborn child’ when referring to the embryo, as Arizona’s informed consent statute does.
Martineau said: “If you interpret [the statute] literally, any slip-up in what kind of information you give is going to create a potential liability.”
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Superior Court Judge Bryan Chambers is considering the motion to resolve the case without the need for a trial, and has said he will make a decision within sixty days.
If the case goes to a trial and if a jury votes in favour of the plaintiffs, it will mark history as the first time that an aborted embryo has won in a wrongful death lawsuit.
This would create a new legal threat for both medical staff and for anyone who is able to become pregnant and chooses not to continue with their pregnancy.
For help, support and advice about abortion, contact the National Abortion Federation on 1-800-772-9100, EST 8am-7pm EST Monday to Friday or EST 8am-4pm EST Saturday to Sunday.
Gabriella Ferlita