Embryo(nic) Tort Law and Common Law Categories

Is there a cause of action for negligently destroying to-be-implanted frozen embryos? This issue was recently placed before the U.S. District Court for the Northern District of Illinois in Kazmeirczak v. Reproductive Genetics Institute, No. 10-cv-523, 2012 WL 4482753 (N.D. Ill. Sept. 26, 2012). Although the court dismissed the case on jurisdictional grounds, the court’s discussion of the facts, the lack of Illinois state-law in the area, and its relation to common law categories is thought provoking.

The facts appear to be uncontested: A couple, the Geigers from Illinois, had donated embryos to another couple, the Kazmierczaks from Michigan, for implantation. The embryos were created by the Reproductive Genetics Institute (“RGI”) and shipped via FedEx. At some point, the embryos were destroyed in transit. The Kazmierczaks and the Geigers sued RGI and FedEx in Illinois state court, and FedEx removed the case to the U.S. District Court for the Northern District of Illinois.

After dismissing FedEx from the suit, the procedural posture of the case required the district court to consider whether Illinois state law applied to the Kazmierczaks’ claim. Interestingly, all of the remaining parties agreed that there was no clearly established Illinois law on point. The closest thing to established law, the Illinois Wrongful Death Act, had been construed by an Illinois appellate court several years earlier as “not allow[ing] a cause of action or recovery under the Act for the loss of an embryo created by in vitro fertilization that has not been implanted into the mother.” (Op. at *1 n.1.)  Not wanting to balance a difficult issue of Illinois substantive law on a thin jurisdictional thread, the federal district court remanded the case back to Illinois state court.

As a matter of federal-state comity, I think it’s tough to disagree that the court did the right thing. We want state courts, after all, to decide important issues of state law. But what of the substantive claim? Honestly, I’m unsure. But I do think that the answer lies entirely in how we conceive (no pun intended) of the Kazmierczaks’ claim. Put in more formalistic terms, the issue is less one of substantive decision-making than of common-law categorization. Here’s what I mean: Conceived of as a contract claim between the Kazmierczaks’ and RGI, I think we would have little problem with the suit. RGI promised to deliver viable embryos for implantation to the Kazmierczaks’; RGI failed; the Kazmierczaks’ were harmed; and they seek damages. (Obviously, a bigger philosophical question exists as to whether the embryos were part of a contract for “goods” under the UCC.) Conceived of as a tort claim against RGI, however, the answer gets murkier. Can the Kazmierczaks’ claim “ownership” over the embryos as a tort to chattel? If so, were they harmed? Are the embryos “people” such that the Kazmierczaks can bring an in loco parentis claim on their behalf?

I think it’s fair to say that, at least under common law principles, the ultimate issue in this case–who wins and who loses–depends not on what the law is but how the law is categorized. This notion–that a court’s categorization of a cause of action controls the suit’s outcome–is not new. But it does demonstrate a sizable difficulty in common law jurisprudence. Surprisingly, this area of tort law (that categorizations drive decisions) has received little recent scholarly focus. Saul Levmore’s article, A Theory of Deception and Then of Common Law Categories in the Texas Law Review, seems like an exemplary but neglected piece of work in this area. While I generally disagree with Levmore’s claim that common law categories are arbitrary, difficult tort policy cases, like those involving embryos, suggest that tort scholars should take another look.