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Keywords

contractlawsuitbreach of contractplaintiffdamagesnegligenceappealcommon lawlegislative intent
plaintiffdefendantappeal

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Miller v. American Infertility Group of Illinois, S.C., 386 Ill.App.3d 141, 897 N.E.2d 837, 325 Ill.Dec. 298

Facts

In 2000, plaintiffs Alison Miller and Todd Parrish underwent in vitro fertilization at the American Infertility Group of Illinois. The resulting blastocyst was not properly cryopreserved by the medical facility, and the plaintiffs were not informed of this failure until several months later. They filed a lawsuit alleging negligence, battery, and breach of contract, seeking damages under the Wrongful Death Act for the loss of the blastocyst.

In 2000, plaintiffs Alison Miller and Todd Parrish underwent attempted in vitro fertilization (IVF) at defendant American Infertility Group of Illinois, S.C., d/b/a The Center for Human Reproduction Illinois (Center). The defendant Center, however, did not cryopreserve the resulting blastocyst for future use.

Issue

Does Section 2.2 of the Illinois Wrongful Death Act allow a cause of action or recovery for the loss of an embryo created by in vitro fertilization that has not been implanted into the mother?

Does Section 2.2 of the Illinois Wrongful Death Act (740 ILCS 180/2.2) allow a cause of action or recovery under the Act for loss of an embryo created by in vitro fertilization that has not been implanted into the mother?

Rule

The Wrongful Death Act provides for recovery for the death of a person by a wrongful act, and a cause of action for wrongful death did not exist at common law. The Act must be strictly construed, and the decedent must have had the potential to maintain an action for personal injury at the time of death.

The Wrongful Death Act provides for recovery for the death of a person by a wrongful act. 740 ILCS 180/1 (West 2006).

Analysis

The court analyzed the legislative intent behind the Wrongful Death Act and its amendments, particularly Section 2.2, which was designed to allow recovery for the death of a fetus during pregnancy. The court concluded that the Act was not intended to cover embryos created through in vitro fertilization that had not yet been implanted, as the legislative history focused on pregnancies within the mother's body.

Thus, it is clear that the legislature's intent in enacting section 2.2 of the Wrongful Death Act was to extend the cause of action to pregnancies in the mother's body regardless of whether the fetus was viable or nonviable.

Conclusion

The Appellate Court answered the certified question in the negative, concluding that the Wrongful Death Act does not allow a cause of action for the loss of an embryo created by in vitro fertilization that has not been implanted into the mother.

For the foregoing reasons, we answer the certified question in the negative.

Who won?

The medical facility prevailed in the case because the court determined that the Wrongful Death Act does not extend to embryos that have not been implanted.

The Appellate Court, Frossard, J., held that Wrongful Death Act does not allow a cause of action or recovery for loss of an embryo, created by in vitro fertilization, that has not been implanted into the mother.

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