1246–1256 121 PACIFIC REPORTER, 3d SERIES · Belinda L. JETER, a married woman; William R. Jeter,...

1246–1256 Ariz. 121 PACIFIC REPORTER, 3d SERIES

he were released. But he nevertheless con-tends the court’s conclusion was wrong, cit-ing a study that showed rapists over the ageof fifty have low recidivism rates and Dr.Maskel’s testimony that Frankovitch was atypical offender in that category and, thus,had less than a ten percent chance of com-mitting sexually violent offenses if released.Again, however, Frankovitch cites a conflictin the evidence that the trial court resolvedagainst him. That the court agreed with thestate’s experts and not his own does notmean the court’s conclusion is unsupportedby the evidence.

¶ 21 In light of the evidence that Franko-vitch had refused to undergo any treatmentsince being committed in 1999 and that hehad refused to be evaluated for the threeannual reports at issue, the evidence reason-ably supports the trial court’s conclusionsthat Frankovitch continued to meet the stat-utory definition of an SVP and should not bereleased. Accordingly, we affirm the court’sorder.

PELANDER, C.J. and FLiOREZ, P.J.,concurring.

,

Editor’s Note: The opinion of the Courtof Appeals of Arizona, Div. 2, in Acunav. Kroack, published in the advancesheet at this citation, 121 P.3d 1246, waswithdrawn from the bound volume be-cause reconsideration is pending.

Belinda L. JETER, a married woman;William R. Jeter, a married man,

Plaintiffs–Appellants,

v.

MAYO CLINIC ARIZONA d/b/a MayoClinic Scottsdale and/or Center for Re-productive Medicine, an Arizona corpo-ration, Defendant–Appellee.

No. 1 CA–CV 04–0048.

Court of Appeals of Arizona,Division 1, Department E.

Oct. 27, 2005.

Background: Couple sued reproductivemedicine clinic for alleged negligent de-struction or loss of five of couple’s frozenpre-embryos that clinic had agreed tocryopreserve and store. Couple broughtclaims for wrongful death, negligent loss ofirreplaceable property, breach of fiduciaryduty, and breach of bailment contract. TheSuperior Court, Maricopa County, No. CV2003-011775, Michael J. O’Melia, J., grant-

1257Ariz.JETER v. MAYO CLINIC ARIZONACite as 121 P.3d 1256 (Ariz.App. Div. 1 2005)

ed clinic’s motion to dismiss, and coupleappealed.

Holdings: The Court of Appeals, Kessler,J., held that:

(1) cryopreserved, three-day-old eight-cellpre-embryo was not a ‘‘person’’ forpurposes of recovery under wrongfuldeath statute;

(2) couple could sue clinic for negligentloss or destruction of pre-embryos;

(3) dismissal of claim for breach of fiducia-ry duty was premature; and

(4) couple could sue for breach of bailmentcontract.

Affirmed in part, reversed in part, and re-manded.

Timmer, J., filed a specially concurring opin-ion.

1. Appeal and Error O919

On review of a complaint that was dis-missed at the pleading stage for failure tostate a claim, the appellate court reviews thewell-pleaded facts alleged in the complaint astrue; however, the appellate court does notaccept as true allegations consisting of con-clusions of law, inferences or deductions thatare not necessarily implied by well-pleadedfacts, unreasonable inferences or unsupport-ed conclusions from such facts, or legal con-clusions alleged as facts.

2. Appeal and Error O893(1)

The appellate court reviews de novo anorder dismissing a complaint for failure tostate a claim.

3. Appeal and Error O863

The appellate court will affirm the dis-missal of a complaint for failure to state aclaim only if satisfied as a matter of law thatthe plaintiff would not be entitled to reliefunder any interpretation of the facts suscep-tible of proof.

4. Appeal and Error O893(1)

The appellate court reviews de novo theinterpretation of a statute.

5. Death O15Cryopreserved, three-day-old eight-cell

pre-embryo was not a ‘‘person’’ for purposesof recovery under Arizona’s wrongful deathstatute; in the absence of legislative actionexpanding the wrongful death statute, suchcryopreserved non-viable pre-embryos arenot ‘‘persons’’ for purposes of that statute.A.R.S. § 12–611.

6. Statutes O220If the Legislature’s intent is not clear on

the face of the statute being interpreted, thecourt looks to see whether the Legislaturehas amended or recodified the statute follow-ing a judicial construction of the statute; ifthe Legislature has so acted, it is presumedthe Legislature knew of the judicial construc-tion, and by amending or recodifying thestatute without addressing that construction,approved of the judicial decision.

7. Health O684Couple could sue reproductive clinic for

the negligent loss or destruction of their pre-embryos under a provision of the Restate-ment adopted in Arizona, which applied toone who failed to exercise reasonable careafter agreeing to render services to protectanother’s person or things; in alleging thatclinic destroyed or lost five frozen pre-em-bryos, couple could maintain an action forharm resulting from the loss of ‘‘things.’’Restatement (Second) of Torts § 323.

8. Damages O57.37While a party cannot bring a claim for

negligent infliction of emotional distressbased merely on the negligent destruction ofproperty, a party can recover damages foremotional distress arising from the tortiousloss of property if the emotional distress isunrelated to the pecuniary loss.

9. Pretrial Procedure O649Dismissal of claim by couple against re-

productive clinic for breach of fiduciary duty,on the ground that the claim was barredunder the medical malpractice act, was pre-mature after clinic allegedly lost or destroyedcouple’s pre-embryos; given the lack of factu-al development in the case, it was not possi-ble to say whether couple’s claim arose out ofthe rendering of medical or health-related

1258 Ariz. 121 PACIFIC REPORTER, 3d SERIES

services, and, therefore, whether claimshould have been barred by medical malprac-tice act. A.R.S. §§ 12–561(2), 12–562(A).

10. Statutes O181(2)

In interpreting a statute, courts are notbound by the arguments of the parties if thatwould lead to an incorrect result.

11. Constitutional Law O46(1)

In interpreting a statute, courts shouldavoid addressing constitutional issues relat-ing to a statute unless absolutely necessaryto resolve a case.

12. Bailment O30

Couple sufficiently pled cause of actionfor breach of bailment against reproductiveclinic in order to withstand motion to dismiss,after clinic allegedly lost or destroyed cou-ple’s pre-embryos; couple submitted threewritten agreements that allegedly evidenceda bailment contract between the parties, in-cluding ‘‘consent regarding in vitro fertiliza-tion services,’’ ‘‘consent regarding thawing ofcryopreserved embryos,’’ and ‘‘request fortransfer of cryopreserved embryo or semenspecimens and assumption of risk.’’

Levenbaum & Cohen by Geoffrey M. Tra-chtenberg, Phoenix, Attorneys for Plaintiffs–Appellants.

Snell & Wilmer L.L.P. by Daniel J. McAu-liffe, Barry D. Halpern, GinaMarie Slattery,Stephanie V. Hackett, Phoenix, Attorneys forDefendant–Appellee.

OPINION

KESSLER, Judge.

¶ 1 Belinda and William Jeter (‘‘the Jet-ers’’) appeal from the dismissal of their law-suit against the Mayo Clinic Arizona doingbusiness as Mayo Clinic Scottsdale and/orthe Center for Reproductive Medicine(‘‘Mayo’’). The Jeters sued Mayo for thealleged negligent destruction or loss of five ofthe Jeters’ frozen human pre-implantationembryos or pre-embryos,1 which Mayoagreed to cryopreserve and store.

¶ 2 The superior court held the Jeters hadfailed to state a claim upon which relief couldbe granted and dismissed their wrongfuldeath claim because the pre-embryos werenot ‘‘persons’’ under Arizona’s wrongfuldeath statutes, Arizona Revised Statutes(‘‘A.R.S.’’) sections 12–611 to –613 (2003). Italso held Arizona did not recognize the Jet-

1. The Jeters referred to the fertilized human eggsat issue in this case as ‘‘embryos.’’ The word‘‘embryo’’ comes from the Greek ‘‘embryon,’’which has been variously translated as ‘‘thingnewly born’’ and ‘‘young of any organism in anearly stage of development.’’ Lars Noah, A Post-modernist Take on the Human Embryo ResearchDebate, 36 Conn. L.Rev. 1133, 1152 (2004)(‘‘Noah’’). See also Jane Maienschein, WhoseView of Life? Embryos, Cloning and Stem Cells at25 (2003) (‘‘Maienschein’’) (explaining that theword may have derived from the terms ‘‘em’’ and‘‘bryein,’’ meaning a ‘‘swelling inside).’’

Use of the term ‘‘embryo’’ in this context ishighly charged because of the discussion amongethicists, scientists, philosophers and the publicgenerally about when a society should consider ahuman life to begin. Referring to a cryopre-served three-day old fertilized human egg as anembryo can imply that the egg is a ‘‘person’’.The word that is used to describe the egg maysignificantly affect one’s perception of when lifebegins. Louis M. Guenin, On Classifying theDeveloping Organism, 36 Conn. L.Rev. 1115,1121–30 (2004) (‘‘Guenin’’); Noah at 1152–54.See also Davis v. Davis, 842 S.W.2d 588, 594(Tenn.1992)(on issue of status of in vitro pre-

embryos, semantical distinctions are significantbecause language can confer legal status andinaccuracy can lead to misanalysis). Thus, whileone view is that an embryo comes into existenceat conception, many scientists and ethicists positthat a fertilized human egg is not an embryountil at least uterine implantation and two weeksof development. Ann A. Kiessling, What is anEmbryo, 36 Conn. L.Rev. 1051, 1088–89 (2004)(‘‘Kiessling’’); Noah at 1133, 1138–52; Maien-schein at 260–61. A number of ethicists andscientists have developed different names for hu-man eggs fertilized outside the womb and notimplanted in a womb, including ‘‘proto-embryo,’’‘‘pre-implantation embryo’’ and ‘‘pre-embryo.’’Kiessling at 188–89; Noah at 1138, 1147–54.

Analytically, it is not the name but the biologi-cal details of development that should help guidethe discussion of when to consider that life be-gins. Maienschein at 260–61. Our analysis nec-essarily relies on the nature of embryonic devel-opment rather than a label. To avoid enteringinto the emotional discussion about when lifebegins, in this opinion we use the term ‘‘pre-embryo.’’ Our use of that term is meant to beneutral and not meant to demean or minimizethe special respect which the Jeters and othersclaim for such fertilized, unimplanted eggs.


ers’ claim for negligent loss of irreplaceableproperty. The court further rejected theJeters’ breach of fiduciary duty and breachof bailment contract claims as barred byArizona’s Medical Malpractice Act, A.R.S.§§ 12–561 to –594 (2003 & Supp.2004).

¶ 3 For the reasons discussed below, weaffirm the superior court’s dismissal of thewrongful death claim and hold that absentlegislative action expanding the wrongfuldeath statutes, as a matter of law, a cryopre-served, three-day old fertilized human egg isnot a ‘‘person’’ for purposes of that statute.However, we reverse the dismissal of theother three claims and remand for furtherproceedings consistent with this opinion.

FACTUAL AND PROCEDURALBACKGROUND

[1] ¶ 4 Since the complaint was dismissedat the pleading stage for failure to state aclaim, we review the well-pleaded facts al-leged in the complaint as true. Shannon v.Butler Homes, 102 Ariz. 312, 315, 428 P.2d990, 993 (1967) (court will accept as true onlywell-pleaded facts). However, we do not ac-cept as true allegations consisting of conclu-sions of law, inferences or deductions thatare not necessarily implied by well-pleadedfacts, unreasonable inferences or unsupport-ed conclusions from such facts, or legal con-clusions alleged as facts. Id.; Dockery v.Central Ariz. Light and Power Co., 45 Ariz.434, 439, 45 P.2d 656, 658 (1935) (only well-pleaded facts accepted as true, not inferencesthat are not necessarily implied by suchfacts); Kellogg v. Nebraska Dep’t of Corr.,269 Neb. 40, 690 N.W.2d 574, 578 (2005)(court will ignore legal conclusions in form offactual allegations).

¶ 5 The Jeters went to Mayo for informa-tion on medical procedures that would assistthem in conceiving a child. Mayo offeredcertain services for harvesting, storing andimplanting pre-embryos, including in vitro

fertilization. With the consent of the Jeters,Dr. Anita Singh at Mayo retrieved or har-vested multiple eggs from Belinda Jeter,which were fertilized in vitro (outside Mrs.Jeter’s womb) with William Jeter’s sperm.The resulting zygotes were permitted toprogress through several divisions in the lab-oratory over a period of forty-eight to seven-ty-two hours, developing from single-cell or-ganisms to two- to eight-cell organisms.While the Jeters’ complaint refers to thesefertilized eggs as ‘‘viable embryos,’’ such acharacterization is a conclusion that is notnecessarily implied from the well-pleadedfacts. Pursuant to a written consent form,Mayo and the Jeters agreed to have Mayocryopreserve and store the pre-embryos.2

¶ 6 Belinda Jeter underwent two unsuc-cessful non-surgical in vitro fertilization pro-cedures at Mayo attempting to implant thepre-embryos into her womb. The Jetersthen began looking at alternative procedures.

¶ 7 The Jeters decided to utilize the ser-vices of Dr. Jay Nemiro at the ArizonaCenter for Fertility Studies Ltd. (‘‘ArizonaCenter’’). Dr. Nemiro offered them an al-ternative procedure called a tubal embryotransfer. A tubal embryo transfer also re-quires initial egg retrieval and fertilizationof the eggs in a laboratory. Unlike the pro-cedures at Mayo, however, in a tubal em-bryo transfer the physician injects the pre-embryos into a woman’s fallopian tube(s)during a laparoscopy, enabling them toreach the uterus via their biological route.

¶ 8 The Jeters made arrangements to per-sonally transfer their ten remaining cryopre-served pre-embyros from Mayo to the Ari-zona Center, obtaining proper storageequipment and arranging for delivery to theArizona Center. The Jeters executed atransfer request form, obtaining Mayo’s re-lease of the remaining cryopreserved pre-embryos in four labeled straws.

2. Cryopreservation is a process that freezes thepre-embryos in liquid nitrogen and delays furthercellular development so that they may be used ata later date. Because the process of harvestingand fertilizing eggs is expensive, cryopreserva-tion permits couples to ‘‘bank’’ them so they canattempt more than one transfer if an initial im-plantation is unsuccessful or the initial transfer is

successful but the couple wishes to have addi-tional children. During cryopreservation, thepre-embryos are stored in cryotubes (or‘‘straws’’) and remain frozen until thawed forsubsequent use. President’s Council on Bioeth-ics, Reproduction and Responsibility—The Regu-lation of New Biotechnologies at 29–30 (March2004) (‘‘PCB’’).


¶ 9 The Jeters alleged they transferred thepre-embryos to the Arizona Center. BelindaJeter then went to the Arizona Center for atubal embryo transfer. Before the surgicalimplantation, the doctor told her that two ofthe four straws did not contain, and hadnever contained, any embryonic matter. Ifthis is accurate, Mayo had actually producedonly five of the Jeters’ ten remaining pre-embyros. Mayo failed to account for the al-legedly missing pre-embryos.

¶ 10 The Jeters proceeded with the tubalembryo transfer at the Arizona Center withthe five remaining pre-embryos. The proce-dure was successful and Belinda Jeter con-ceived and delivered a daughter. However,the Jeters would like to have more childrenand now must undergo the additional discom-fort and cost of harvesting and fertilizingmore eggs. In addition, the Jeters remainconcerned about the fate of the allegedlymissing pre-embryos, wondering whetherMayo lost or destroyed them or whetherMayo may have given them to the wrongpeople, resulting in the birth of one or moreof the Jeters’ biological children to anotherwoman.

¶ 11 The Jeters sued Mayo alleging fourclaims. Count One asserted a claim for‘‘Negligence—Loss of Potential Children’’under Arizona’s wrongful death statutes.Count Two asserted a claim for ‘‘Negli-gence—Loss of Irreplaceable Property.’’Under that count, the Jeters alleged Mayohad breached its duty to store and safeguardthe fertilized eggs. Count Three asserted aclaim for ‘‘Breach of Fiduciary Duty,’’ alleg-ing that, because the organisms were ‘‘poten-tially viable human beings, their custody wasentitled to ‘special respect’ and [the] higheststandards of care.’’ Finally, Count Four as-serted a claim for breach of a bailment con-tract.

¶ 12 Mayo moved to dismiss the complaintfor failure to state a claim, arguing as toCount One that the cryopreserved three-dayold, eight-cell pre-embryos were not ‘‘per-sons’’ under the Arizona wrongful death stat-utes. Mayo further asserted as to CountTwo that Arizona did not recognize a claimfor loss of irreplaceable property. As to

Count Three, Mayo argued that the medicalmalpractice act barred the claim for breachof fiduciary duty because it was not an enu-merated cause of action against a health careprovider allowed by that act. Finally, as toCount Four, Mayo asserted that A.R.S.§ 12–562(C) (Supp.2003) barred the breachof bailment contract claim because there wasno written bailment contract between theparties as required by that statute.

¶ 13 The Jeters opposed the motion, askingthe court to recognize the first two causes ofaction and to hold the medical malpracticeact unconstitutional if it abrogated theirclaims. They also contended they had awritten bailment contract with Mayo.

¶ 14 The superior court granted Mayo’smotion, holding:

The Court specifically finds that thewrongful death statute does not providerelief for frozen cell embryos and that thesame are not ‘‘persons.’’

The Court also specifically finds thatthere is no common law cause of action inArizona for the alleged negligent loss ofviable human embryos.

And lastly, the Court finds that the Ari-zona medical negligence (malpractice) actis not unconstitutional.

¶ 15 The Jeters moved for partial reconsid-eration and clarification of the ruling. Theyasked the court to reconsider its holding thatArizona did not recognize a common lawcause of action for negligent loss of irreplace-able property. They further asked the courtto clarify its ruling as to their claim forbreach of bailment contract, asserting theyhad shown they had a written contract withMayo.

¶ 16 The superior court denied the motionfor reconsideration. The court noted thatperhaps the third paragraph of its prior min-ute entry (regarding the constitutionality ofthe medical malpractice act) could be re-moved but stated that this ‘‘entire ‘subject’needs to be handled by the Appellate Courtsand/or Legislature.’’ The court enteredjudgment granting Mayo’s motion to dismiss,and the Jeters timely filed this appeal.3

3. Mayo initially filed a notice of cross-appeal contesting the superior court’s denial of its mo-


ISSUES

¶ 17 The Jeters argue the superior courtimproperly dismissed their complaint be-cause: (1) the Jeters’ cryopreserved pre-em-bryos were ‘‘persons’’ under the Arizonawrongful death statutes; (2) Arizona recog-nizes a cause of action for the negligent lossor destruction of the cryopreserved pre-em-bryos; (3) to the extent A.R.S. §§ 12–561(1)and –562(A) bar the Jeters’ claims for breachof fiduciary duty and breach of bailmentcontract, those statutes are unconstitutional;and (4) the Jeters adequately pled the exis-tence of a written bailment contract as re-quired by A.R.S. § 12–562(C).

DISCUSSION

I. Jurisdiction and Standard of Review

[2–4] ¶ 18 We have jurisdiction over thisappeal pursuant to A.R.S. § 12–2101(B)(2003). We review de novo an order dismiss-ing a complaint for failure to state a claim.Fairway Constr., Inc. v. Ahern, 193 Ariz.122, 124, ¶ 4, 970 P.2d 954, 956 (App.1998).We will affirm such a dismissal only if ‘‘satis-fied as a matter of law that plaintiffs wouldnot be entitled to relief under any interpreta-tion of the facts susceptible of proof.’’ Fidel-ity Sec. Life Co. v. State of Arizona Dep’t ofIns., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582(1998). We review de novo the interpreta-tion of a statute. Open Primary ElectionsNow v. Bayless, 193 Ariz. 43, 46, ¶ 9, 969P.2d 649, 652 (1998).

II. Summary of Holding

¶ 19 For the reasons stated below, we holdthat, given the current unsettled discussionover when life begins in this context, it isbest left to the Arizona Legislature, not thecourts, to decide whether to include a three-day-old, eight-cell cryopreserved pre-embryowithin the statutory definition of ‘‘person’’under the wrongful death statutes. Accord-ingly, we affirm the superior court’s dismiss-al of the wrongful death claim. However, wealso hold that the Jeters stated causes ofaction for negligent loss or destruction of the

pre-embryos, breach of fiduciary duty andbreach of a bailment contract, and thereforewe reverse the superior court’s dismissal ofthose claims.

III. The Claim Under Arizona’s WrongfulDeath Statutes

[5] ¶ 20 The superior court correctly heldthat under current Arizona law a cryopre-served, three-day-old eight-cell pre-embryo isnot a ‘‘person’’ for whose loss or destructionthe Jeters can recover under Arizona’swrongful death statutes as interpreted inSummerfield v. Superior Court, 144 Ariz.467, 698 P.2d 712 (1985). We decline theJeters’ request to broadly interpret the term‘‘person’’ under the wrongful death statutesto conception outside a woman’s womb. Wedo so based on Summerfield, general princi-ples of statutory construction, the status ofscientific knowledge concerning embryonicdevelopment, the ongoing discussion concern-ing when life begins, the unintended conse-quences that may result from such a judicialholding and case law from other jurisdictions.Given these factors and principles, we con-clude that, subject to constitutional limita-tions, a decision to expand the definition of‘‘person’’ for purposes of the wrongful deathstatutes beyond that stated in Summerfieldis best left to the Legislature.

A. Summerfield and Arizona’s WrongfulDeath Statutes

¶ 21 Arizona’s wrongful death statute pro-vides, in pertinent part:

When death of a person is caused bywrongful act, neglect or default, and theact, neglect or default is such as would, ifdeath had not ensued, have entitled theparty injured to maintain an action to re-cover damages in respect thereof, then,and in every such case, the person who orthe corporation which would have beenliable if death had not ensued shall beliable to an action for damages, notwith-standing the death of the person in-juredTTTT

tion for attorneys’ fees. Mayo subsequently with-drew that notice, and this Court dismissed the

cross-appeal.


A.R.S. § 12–611 (emphasis added). The Ari-zona Legislature has not defined the mean-ing of ‘‘person’’ under the statute. In Sum-merfield, our supreme court interpreted thatword’s meaning. Disapproving a prior deci-sion that required a live birth for a fetus tobe considered a person under the wrongfuldeath statutes, the court adopted a moreexpansive view of the term ‘‘person’’ underthe wrongful death statutes, holding it toinclude a viable fetus, meaning the ability ofa fetus to live outside the womb. 144 Ariz. at477–79, 698 P.2d at 722–24 (disapproving Kil-mer v. Hicks, 22 Ariz.App. 552, 529 P.2d 706(1974)).

¶ 22 In Summerfield, the plaintiffs broughta wrongful death action, alleging that theirthirty-seven-week-old fetus was stillborn as aresult of the defendant physician’s medicalmalpractice. Id. at 470, 698 P.2d at 715.The trial court dismissed the action on thebasis that a fetus was not a ‘‘person’’ underA.R.S. § 12–611. Id. The supreme court re-versed, holding that the term ‘‘person’’ asused in the wrongful death statutes ‘‘encom-passes a stillborn, viable fetus’’ for which awrongful death claim could be brought. Id.at 479, 698 P.2d at 724 (emphasis added).

¶ 23 Of particular import to this case is thesupreme court’s restriction of its holding toonly allow wrongful death claims arisingfrom the death of a viable fetus. Id. at 477,698 P.2d at 722. The court recognized thatviability was still somewhat of an arbitraryline, but determined that it was a ‘‘less arbi-trary and more logical point than the mo-ment of birth.’’ Id. The court stated that oneof the prerequisites for recovery under thewrongful death statutes ‘‘is the ability of theinjured party to maintain an action if deathhad not ensued.’’ Id. at 475, 698 P.2d at 720.The court held that ‘‘the common law nowrecognizes that it is the ability of the fetus tosustain life independently of the mother’sbody that should determine when tort lawshould recognize it as a ‘person’ whose loss iscompensable to the survivors.’’ Id. at 477,698 P.2d at 722. The court agreed with theMissouri Supreme Court that if ‘‘[b]ut for theinjury’’ a viable fetus would have been born,thereby entitling the child to sue for his orher injury, the fetus is a ‘‘person’’ for pur-poses of a wrongful death action. Id. at 475,

698 P.2d at 720 (citing O’Grady v. Brown,654 S.W.2d 904, 911 (Mo.1983)).

¶ 24 Unlike a viable fetus, many variablesaffect whether a fertilized egg outside thewomb will eventually result in the birth of achild, see ¶ 46, infra. This makes it specula-tive at best to conclude that ‘‘but for theinjury’’ to the fertilized egg a child wouldhave been born and therefore entitled tobring suit for the injury. See, generally,Robertson v. Sixpence Inns of America, Inc.,163 Ariz. 539, 546, 789 P.2d 1040, 1047(1990)(holding causation cannot be left tospeculation). The absence of this prerequi-site to ‘‘personhood’’ supports a conclusionthat pre-implantation fertilized human eggsare not ‘‘persons’’ for purposes of § 12–611.

¶ 25 Other considerations which led to theresult in Summerfield also support our con-clusion not to further judicially broaden themeaning of ‘‘person’’ under the wrongfuldeath statute without express Legislative di-rection. The Summerfield court examinedthe Legislature’s goals in enacting thewrongful death statute and concluded thatincluding a viable fetus in the definition of‘‘person’’ furthered these goals. Id. at 476,789 P.2d at 721. First, the court identifiedcompensation to survivors for the loss ofvictims as a goal in enacting the wrongfuldeath statute. Id. Second, the court recog-nized protection of a viable fetus as a legisla-tive goal in laws concerning abortions andcrimes. Id. In light of this overall legislativepolicy of compensation and protection of via-ble fetuses, the court construed the wrongfuldeath statute as giving parents a remedywhen their viable fetus is negligently killed.Id.

¶ 26 While allowing a parent to maintain awrongful death action for loss of a pre-im-plantation fertilized egg may further thecompensation goal, it would not further anyprotection goal advanced by the Legislature.Currently, no statute in Arizona protects fer-tilized eggs outside the womb in the waystatutes protect fetuses and embryos im-planted in wombs. See, e.g., A.R.S. § 13–1103(A)(5),(B)(providing a person commitsmanslaughter for knowingly or recklesslycausing death of unborn child in womb at any


stage of development by physically harmingmother). Compare A.R.S. § 36–2301 (impos-ing duty on physicians performing abortionsto maintain life of any fetus or embryo deliv-ered alive ). Consequently, and because par-ents may otherwise obtain compensation byfiling other actions for loss of pre-implanta-tion fertilized eggs, legislative policy wouldnot be furthered by including such fertilizedeggs within the definition of ‘‘person’’ forpurposes of the wrongful death statute.

¶ 27 The Summerfield court also surveyedother jurisdictions and concluded that thecommon law ‘‘recognizes that it is the abilityof the fetus to sustain life independently ofthe mother’s body that should determinewhen tort law should recognize it as a ‘per-son’ whose loss is compensable to the surviv-ors.’’ Summerfield, 144 Ariz. at 477, 698P.2d at 722. In the twenty years since Sum-merfield, most jurisdictions have limited thedefinition of ‘‘person’’ in wrongful death stat-utes to a point after the fetus is viable. See,¶¶ 55–59, infra, and cases cited therein.Thus, the common law does not currentlyrequire ‘‘the growth and evolution’’ of Ari-zona’s wrongful death statutes to include apre-implantation fertilized egg within thedefinition of ‘‘person’’ in A.R.S. § 12–611.See Summerfield, 144 Ariz. at 473, 698 P.2dat 718.

¶ 28 In conclusion, the Summerfield modelof analysis yields a conclusion that a ferti-lized human egg outside the womb is not a‘‘person’’ within the meaning of A.R.S. § 12–611 regardless of whether that fertilized eggconstitutes human life or potential humanlife.

B. Principles of Statutory Construction

¶ 29 Principles of statutory constructionalso support our conclusion that the wrongfuldeath statute does not encompass the loss ofa cryopreserved pre-embryo. The ultimategoal of statutory construction is to give effectto the Legislature’s intent. People’s ChoiceTV Corp. v. City of Tucson, 202 Ariz. 401,403, ¶ 7, 46 P.3d 412, 414 (2002). Whenseeking the intent of the Legislature, we firstlook to the plain wording of the statute. Inre Adam P., 201 Ariz. 289, 291, ¶ 12, 34 P.3d398, 400 (App.2001). If that language is un-

ambiguous, we apply it without use of othermeans of statutory construction. Aros v.Beneficial Ariz., Inc., 194 Ariz. 62, 66, 977P.2d 784, 788 (1999). However, when thestatutory language does not make that intentclear, we construe the statute to ascertainthat intent using a number of principles ofstatutory construction. Id. Each such princi-ple relevant to the issue presented here sup-ports our conclusion that this Court shouldnot interpret the term ‘‘person’’ as used inA.R.S. § 12–611 as including a cryopreservedthree-day-old pre-embryo.

¶ 30 As noted above, A.R.S. § 12–611 sim-ply refers to a ‘‘person’’ without further ex-planation. As such, the statutory language isnot clear whether the Legislature intended toprotect such pre-embryos as persons for pur-poses of those statutes. Accordingly, wemust apply various principles to determinethe Legislature’s intent.

[6] ¶ 31 First, if the Legislature’s intentis not clear on the face of the statute, we lookto see whether the Legislature has amendedor recodified the statute following a judicialconstruction of the statute. If the Legisla-ture has so acted, it is presumed the Legisla-ture knew of the judicial construction and byamending or recodifying the statute withoutaddressing that construction, approved of thejudicial decision. Fisher v. Kaufman, 201Ariz. 500, 502, ¶ 12, 38 P.3d 38, 40 (App.2001)(Legislature is presumed to know of courtdecisions interpreting statutory language andto approve those decisions when it retainsthe language.); Hause v. City of Tucson, 199Ariz. 499, 502, ¶ 10, 19 P.3d 640, 643 (App.2001) (Court will not presume Legislatureintended to supersede supreme court’s inter-pretation of statute unless it did so explicitlyor such a conclusion is clearly required bythe language or effect of the statute; whenLegislature reenacts statute without change,court presumes the Legislature adopted su-preme court’s interpretation.) (citing Madri-gal v. Indus. Comm’n, 69 Ariz. 138, 144, 210P.2d 967, 971 (1949)).

¶ 32 The supreme court decided Summer-field in 1985. In 2000, the Legislatureamended A.R.S. § 12–612 to address who canbe a party plaintiff for a child. 2000 Ariz.


Sess. Laws, ch. 182, § 1. Pursuant to theabove rules of statutory construction, theLegislature knew of Summerfield and didnot amend any language in the wrongfuldeath statute to address whether the Actapplied to the death of a nonviable fetus, noless a cryopreserved three-day-old pre-em-bryo. Accordingly, we presume the Legisla-ture approved of the supreme court’s con-struction of the term ‘‘person’’ to include a‘‘viable’’ fetus.4

¶ 33 Second, we must not construe a stat-ute to reach an absurd result. Bilke v. State,206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271(2003). A court must also consider the con-sequences of those constructions to see whatlight they shed on the proper interpretation.Walter v. Wilkinson, 198 Ariz. 431, 433, ¶ 10,10 P.3d 1218, 1220 (App.2000). If this Courtwere to interpret the concept of ‘‘person’’ forpurposes of the wrongful death statutes toinclude cryopreserved three-day-old eight-cell pre-embryos such as those involved here,a number of difficulties could arise. Forexample, it is unclear how long a pre-embryocan safely remain in a cryopreserved state.5

If the female donor decided she did not wantanother child, the clinic would be faced withthe dilemma of allowing the pre-embryos tobe irretrievably damaged by indefinite stor-age and face potential liability for a wrongfuldeath.

¶ 34 Each of these principles of statutoryconstruction weighs in favor of preservingthe current test under Summerfield for a‘‘person’’ for purposes of our wrongful deathstatutes—that of a viable fetus. Moreover,the special types of respect due embryos andpre-embryos can be met without the need tobroadly expand the definition of ‘‘person’’ forthe wrongful death statutes.

C. The Jeters’ Claim to Expand the Defi-nition of Viability

¶ 35 Given the decision-making model uti-lized in Summerfield and principles of statu-tory interpretation, we could conclude thatthe Jeters’ claim for wrongful death of thepre-embryos fails as a matter of law. How-ever, as the court made clear in Summer-field, 144 Ariz. at 473, 698 P.2d at 718, in thecontext of the wrongful death statute thecourts should play an important role in thedevelopment of the common-law attributes ofwrongful death actions, especially when theLegislature has not ‘‘occupied the field sofully as to preclude judicial development.’’144 Ariz. at 472–73, 698 P.2d at 717–18. TheJeters invite this Court to participate in thatevolution, pointing out that the court in Sum-merfield relied in part on advances of scienti-fic knowledge concerning embryonic develop-ment to expand the meaning of the term

4. Our conclusion as to legislative intent is im-plicitly supported by the Legislature’s recentamendment to the criminal code. In 2005, theLegislature expanded the definition of negligenthomicide, second-degree murder and first-degreemurder to include deaths of an unborn child ‘‘inthe womb at any stage of its development.’’2005 Ariz. Sess. Laws, ch. 188, §§ 4–7. ThisCourt had held in State v. Cotton, 197 Ariz. 584,587, ¶ 10, 5 P.3d 918, 921 (App.2000), that thehomicide statutes did not apply to a fetus sincethe statutes did not refer to them. The 2005statutory amendments supersede that holding.

We recognize that the Legislature has used theword ‘‘embryo’’ in other statutes unrelated to thewrongful death statutes. None of these usessupports the argument that the Legislature’s useof ‘‘person’’ in A.R.S. § 12–612 was intended toinclude a cryopreserved in vitro pre-embryo.E.g., A.R.S. §§ 36–2301 et seq. (requiring physi-cian performing abortion in which a human fetusis born alive to promote and preserve the life ofsuch fetus and prohibiting certain types of re-search on any human fetus or embryo resultingfrom an induced abortion). Section 36–2301

(2003) does not affect our decision because it isunrelated to the wrongful death statutes, doesnot define the word ‘‘embryo,’’ and appears to belimited to ‘‘embryos’’ in vivo by its use of theterm ‘‘delivered alive.’’ It also limited such re-search to embryos resulting from an inducedabortion. A.R.S. § 36–2302(A) (2003). The fed-eral courts have declared the statute void forbeing unconstitutionally vague. Forbes v. Woods,71 F.Supp.2d 1015, 1020 (D.Ariz.1999), aff’d subnom. Forbes v. Napolitano, 236 F.3d 1009 (9thCir.), amended by Forbes v. Napolitano, 247 F.3d903 (9th Cir.2000), and Forbes v. Napolitano, 260F.3d 1159 (9th Cir.2001).

5. Melinda Troeger, Comment, The Legal Status ofFrozen Pre–Embryos When a Dispute Arises Dur-ing Divorce, 18 J.Amer. Acad. Matrimonial Law-yers 563, 565 (July 2004). Compare PCB at 29(citing one study that such preserved organismscan last 50 years or longer in a frozen state) withDavis, 842 S.W.2d at 598 n. 22 (as of 1990,maximum length of pre-implantation viabilitywas two years although some authors claimedten-year period).


‘‘person’’ in the wrongful death statute. Id.at 473–77, 698 P.2d at 716–20. The Jeterscontend that since 1984, when Summerfieldwas decided, knowledge of embryonic devel-opment and viability has advanced to thepoint where, as a matter of law, courts canand should broaden the meaning of ‘‘person’’to include cryopreserved pre-embryos.

¶ 36 It is important to understand what theJeters argue. Neither in the superior courtnor in this Court did the Jeters claim thatthey had evidence to support a view that acryopreserved pre-embryo fits within thedefinition of a viable fetus as discussed inSummerfield, that is, an entity which canpresently survive to birth outside of thewomb. Rather, relying on various treatises,6

the Jeters contend that medical science hasso advanced since the supreme court decidedSummerfield, that as a matter of law andstatutory construction, this Court should ex-pand the definition of a ‘‘person’’ articulatedin Summerfield to allow wrongful death ac-tions for the loss of cryopreserved three-day-old eight-celled pre-embryos because theyhave the potential to become viable. Theycontend those medical advances allow suchpre-embryos to maintain ‘‘extrauterine’’ lifevia the cryopreservation process.

¶ 37 Particularly given the current scienti-fic, ethical, social and legal controversy overwhen life should be considered to begin, wedecline to so interpret the meaning of theterm ‘‘person’’ in the wrongful death statute.Absent a specific legislative definition of‘‘person,’’ we could decide whether a broadercommon-law interpretation of that term islegally appropriate. Summerfield, 144 Ariz.at 472–73, 698 P.2d at 717–18. However, asa matter of judicial restraint such a decisioncurrently is best left to the Legislature sub-ject to any constitutional constraints.

¶ 38 We decline the Jeters’ invitation fortwo reasons. First, their position broadensthe definition of viability to a point of ‘‘poten-tial viability,’’ whereas the court in Summer-field was using viability to mean the presentability of the entity to exist and fully developto birth outside of the womb. Our under-standing of scientific knowledge at the cur-rent time does not support a broadening ofthis legal definition to potential viability ab-sent legislative direction. Second, such abroadening of the term ‘‘person’’ requiresbalancing of a number of other factors andsocietal interests best left to the Legislature.

1. Potential vs. Present Viability

¶ 39 The Jeters claim that given scientificadvancements, courts should, as a matter oflaw, broaden the term ‘‘person’’ in this con-text to include pre-embryos. The Jeters donot contend that three-day-old, eight-celledcryopreserved pre-embryos can exist and de-velop into viable entities ex utero. Rather,they claim that it is the pre-embryos poten-tial to become viable, if later implanted in awomb, which should govern our decision.

¶ 40 As a legal matter, this argument mis-states the idea of viability. In this context,‘‘viability’’ means that, once implanted in thewomb, the embryo has reached a stage ofdevelopment that, if it is taken out of thewomb, it would be viable. Thibert v. Milka,419 Mass. 693, 646 N.E.2d 1025, 1026–27(1995).7

¶ 41 Current scientific knowledge concern-ing embryonic development underscores thedifference between a viable fetus in vivo andan eight-cell, three-day-old pre-embryo in vi-tro. Such knowledge is important to helpguide, but not dictate resolutions of the prob-lem. Maienschein at 10.8

6. Given the lack of case law on the issue of thestatus of pre-embryos, it is appropriate to rely onlegal and medical-legal treatises to address thisargument. Davis, 842 S.W.2d at 590.

7. Indeed, if one takes the Jeters’ argument to itslogical extreme, cryopreserved sperm and unfer-tilized eggs should also be ‘‘persons’’ for pur-poses of the wrongful death statutes because theywould become ‘‘viable’’ once fertilized.

8. As Professor Maienschein points out in herdiscussion of the history of knowledge concern-

ing embryonic development, erroneous pre-con-ceptions about science and medicine have oftenled to erroneous policy and to unjust implemen-tations of that policy. She cites as a notableexample the belief in eugenics in the early 20thCentury that eventually led to the sterilization ofpeople with remedial disabilities on the mistakenbelief that such disabled persons were imbeciles.Thus, the oft-quoted statement that sterilizationof such disabled persons was necessary because‘‘[t]hree generations of imbeciles are enough.’’Maienschein at 103–07 (quoting Buck v. Bell, 274


¶ 42 We summarize our understanding ofthe current state of knowledge of embryonicdevelopment not to dictate or prejudge anydecision as to when life should be consideredto begin for purposes of a wrongful deathaction. Rather, we do so to fairly respond tothe Jeters’ claim that, as a matter of law, acourt should re-interpret the wrongful deathstatutes to define ‘‘person’’ to include acryopreserved three-day old, eight-celled fer-tilized egg. The following summary is takenfrom a number of sources, including Maien-schein at 256–62; Ronald M. Green, TheHuman Embryo Research Debates—Bioeth-ics in the Vortex of Controversy at 6–8, 27–29, 42 (2001) (‘‘Green’’); Andrea L. Bonnick-sen, Crafting a Cloning Policy—From Dollyto Stem Cells at 20–25 & 69–71 (2002) (‘‘Bon-nicksen’’); James A. Thomson, Human Em-bryonic Stem Cells, in The Human Em-bryonic Stem Cell Debate (Suzanne Holland,Karen LeBacqz, Laurie Zoloth, eds.) (2001)(‘‘Holland’’) at 15; Thomas A. Shannon,From the Micro to the Macro, in Holland at178; Kiessling at 1055–65.

¶ 43 Traditionally an egg is fertilized bythe combining of an egg and a sperm, whichare collectively referred to as gametes.Once an egg is fertilized, whether in vivo orin vitro, it can be referred to as a one-cellzygote. After two to three days of division,the cells are blastomeres. At that time, thepre-embryo consists of eight cells, all ofwhich are totipotent, meaning that any of thecells could develop into any type of tissueand could theoretically develop into eightseparate fetuses. At four to six days, it is .1millimeter in diameter, at which time thecells begin to separate and migrate.

¶ 44 If growth proceeds normally, the out-er cells will eventually become the placentaand tissue supporting the fetus while the

inner cells, called the inner cell mass, willbecome the fetus. At five to six days ofdevelopment, it is called a blastocyst andconsists of a hollow ball of approximately 100cells. These cells are pluripotent, meaningthat they have started to specialize but canstill develop into various types of tissue. Sci-entists are still learning how the cells func-tion at this point of development.

¶ 45 By the ninth or tenth day, if in vivoand if it has continued to develop, the blasto-cyst will implant in the uterine wall.9 At dayfourteen, a critical development occurs—thecreation of the primitive streak with threelayers of specialized cells that will developinto all the fetus’ tissues and cells if develop-ment continues. At this point it has approxi-mately 2000 cells; the groove or middle linereflects a head-tail and left-right orientation.By day 22 of normal development, the heartbegins to beat, and, by day 40, some bodyparts are recognizable in primitive form. Ateight weeks, if it has continued to develop,most of the organ systems have appeared.

¶ 46 As noted above, the occurrence ofeach of these events depends on the ability ofthe organism to continue to develop. This isproblematic because the percentage of pre-embryos that develop into a fetus and a livebirth is not high, regardless whether it isdeveloping in vivo or in vitro, but it is signifi-cantly lower for cryopreserved pre-embryos.The President’s Council on Bioethics has es-timated that, in 2001, only 32.8% of assistedreproductive technology fertilized organismsdeveloped into a pregnancy if not cryopre-served. Only 27% led to live births. Forcryopreserved pre-embryos, only 65% sur-vived thawing and only 20.3% led to livebirths. Moreover, in 2001, 72% of all assist-ed reproductive technology transfers failed tolead to a birth. PCB at 29, 31–33 & 46.10

U.S. 200, 207, 47 S.Ct. 584, 71 L.Ed. 1000(1927)).

9. Physicians generally attempt to transfer thepre-embryo to the woman on the second or thirdday after fertilization, or wait until the fifth day.PCB at 30.

10. Other authors have come to similar conclu-sions. See Maienschein at 165 (more than onehalf of all fertilized eggs never get implanted fornatural reasons or abort spontaneously); Repro-

ductive Medical Associates of New York, LLP,Treatment Options: Embryo Cryopreservation,http://www. rmaofny.com/cryo.asp (last visitedJune 29, 2005) (nearly 50% of all cryopreservedpre-embryos do not survive thawing process);Bonnicksen at 23 (approximately two-thirds ofembryos do not survive and most are lost in thefirst fourteen days after fertilization); Green at37 (between 67% and 75% of in vivo fertilizedeggs do not implant); Davis, 842 S.W.2d at 595n. 19 (as of 1990, a pre-embryo in a petri dish,has only 13 to 21% chance of achieving actual


¶ 47 Many pre-embryos are simply dam-aged during the treatment of the womandonor in preparing for the harvesting ofeggs. Green at 56–59, 72–73. Some pre-embryos simply stop developing as early asthe first two cell divisions. It is posited thatthe cessation of development may be a natu-ral event to eliminate organisms when thereis some inherent defect that would eventuallystop further development into a fetus.Green at 9.

¶ 48 Our supreme court’s decision in Sum-merfield clearly provided that present viabili-ty is a prerequisite to recovery under A.R.S.§ 12–611. As shown by the above summaryof our knowledge of embryonic development,one- to eight-cell cryopreserved pre-embryosstored in straws are not presently viable atthat stage of the reproductive process andare incapable of developing into children viaan extrauterine process. The cryopreservedpre-embryos are not then viable, as requiredby Summerfield, 144 Ariz. at 475, 698 P.2d at720. Rather, they only have a remote poten-tial to become viable.11 As such, it is bestleft to the Legislature, not to the courts, todetermine whether ‘‘person’’ in this contextshould include cryopreserved pre-embryos.

2. The Current Discussion Over the Be-ginning of Life

¶ 49 We also reject the Jeters’ invitation tomore broadly define ‘‘person’’ in this contextbecause such a decision would have impor-

tant ramifications requiring the balancing ofvarious issues and interests that are best leftto the Legislature to consider.

¶ 50 The discussion over when societyshould consider human life to begin has ex-isted since the at least the 4th CenturyB.C.E. Maienschein at 7–10. As ProfessorMaienschein explains, the nature of the dis-agreement has evolved as knowledge of em-bryonic development has advanced. Id. at13–298. While the Jeters rely on severalmedical-legal texts to support their argumentthat human life begins at conception, thosetexts are only part of the discussion amongscientists, philosophers, ethicists and thepublic as a whole on the issue of when societyshould consider life to begin. Most of theseauthors do not support the idea of expandingthe concept to cryopreserved pre-embryos.To the extent any of them do, it is that veryunsettled discussion that underscores theneed for the Legislature, not the courts, tobalance the various factors and policy con-cerns on this issue.12

¶ 51 As explained by both Forsythe at 504–10 and Green at 22–25 and 63–66, there arevarious theories of what constitutes a ‘‘per-son.’’ One current analysis is to examinevarious subjective attributes including the ca-pacity to feel pain, experience pleasure, sur-vive and react to the environment. In con-trast, various authors taking a developmentalperspective consider implantation, develop-

implantation); Center for Applied ReproductiveScience, Rationale for Cryopreservation, http://ivf-et.com/ tlc/fact cryo preservation.html (last visit-ed June 29, 2005) (pregnancy success rate usingthawed pre-embryos ranges up to 30%).

11. We recognize, as did the supreme court inSummerfield, that choosing viability as the pointat which a fetus becomes a person for wrongfuldeath purposes is arbitrary. 144 Ariz. at 477,698 P.2d at 722. However, the Jeters’ conten-tion that fertilization is a bright line test ignoresthe current discussion that fertilization itself isnot a distinct event but rather a process of reac-tions. Kiessling at 1057–61; Ronald M. Green,Determining Moral Status, 2 Amer.J.Bioethics 20at 20–22 (Winter 2002); Green at 27–29.

12. Gary A. Meadows, Wrongful Death and theLost Society of the Unborn, 12 J. Legal Med. 99(1992) (‘‘Meadows’’); Daniel S. Meade, WrongfulDeath and the Unborn Child: Should Viability bea Prerequisite for a Cause of Action?, 14 J. Con-temp. Health L. & Pol’y 421 (1998) (‘‘Meade’’);

John A. Robertson, In the Beginning: The LegalStatus of Early Embryos, 76 Va. L.Rev. 437(1990) (‘‘Robertson’’); Clarke D. Forsythe, Hu-man Cloning and the Constitution, 32 Val.U.L.Rev. 469 (1998) (‘‘Forsythe’’). Some ofthese authors contend that viability as a test forwhen a person exists for wrongful death actionsis arbitrary and provides immunity to a tortfea-sor. Meade at 441–49; Meadows at 112–14.Only one author contends that all aspects ofdevelopmental individuality for purposes of de-termining when an embryo is a ‘‘person’’ for civiland criminal liability is not ‘‘morally relevant[because] TTT a human organism is present.’’Forsythe at 506–13. None of the other authorscalls for expansion of wrongful death actions tocryopreserved pre-embryos, and one of themnotes that pre-embryos should not be considered‘‘persons’’ but only granted special respect, not-ing the need to balance interests addressed.Robertson at 441–47.


ment of the embryonic disc at fourteen daysof fertilization, sentience, viability and/or theexistence of brain waves. The 1994 NationalInstitutes of Health Human Embryo Re-search Panel took a pluralistic approach, ex-amining the increasing possession of qualitiesthat make respecting the entity more com-pelling. An opposing view contends a humanbeing is created at the time of fertilizationbecause at that time the embryo has anactive capacity to eventually articulate itselfinto a human being. Forsythe at 474–78.The lack of any clear, generally acceptedconcept of when ‘‘personhood’’ occurs furthersupports leaving the decision as to furtherexpanding the term ‘‘person’’ for wrongfuldeath purposes to the Legislature.13

¶ 52 Indeed, there are important societalinterests which help fuel the current discus-sion concerning when life should be consid-ered to begin. On the one side is the con-tention that there are benefits of utilizinghuman pre-embryonic material for stem cellresearch to diagnose and treat severe medi-cal conditions, including infertility. This in-terest, however, is balanced against respectfor human life. The balancing of these is-sues is not simply black and white, but a

gray continuum. Most of the commentatorsrecognize both the relative respect to whichembryonic material is entitled and the valueof using that material for scientific and medi-cal research. PCB at 123–27 and 223–24(noting value of embryonic material in stemcell research balanced against respect dueembryos at least after fourteen days of de-velopment); Francois Baylis, Human Em-bryonic Stem Cell Research: Comments onthe NBAC Report, in Holland at 53–4 (quot-ing the National Bioethics Advisory Commis-sion 1999 Report that such organisms are tobe destroyed only with good reason such aswhen necessary for research to developcures for life-threatening or severely debili-tating diseases when no less morally soundalternatives are available); Kevin P. Quinn,The Politics of Embryonic Discourse, 36Conn. L.Rev. 1163, 1168 (2004) (‘‘[E]arly em-bryos and nuclear transplants deserve re-spect ‘in virtue of the kind of entity theyare.’ ’’); Lebacqz, On the Elusive Nature ofRespect, in Holland at 149 (discussing vari-ous concepts of respect and that scientistscan show respect for embryonic materialused for research by engaging in carefulpractices of research ethics).14

13. While the concept of viability for purposes ofwrongful death statutes has been criticized, thatcriticism has focused in part both on the arbi-trary nature of viability and on those cases thathave adopted viability from the United StatesSupreme Court’s decision in Roe v. Wade, 410U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).Meade at 442–47. Even that call for a broaderdefinition of person has been limited to fertiliza-tion within the woman’s womb. Id. at 447. Thecourt in Summerfield expressly rejected abortionlaw decisions as a basis for its adoption of theviability test. 144 Ariz. at 474–78, 698 P.2d at719–23.

14. Other views include: Guenin at 1119–20 (Fe-male donor should have right to decline intra-uterine transfer of and donate in vitro embryo formedical research because once decision is madenot to implant in vitro pre-embryo it lacks anydevelopmental potential.); Thomas B. Okarma,Human Embryonic Stem Cells: A Primer On theTechnology and its Medical Applications, in Hol-land at 1 (discussing value of embryonic stemcell research but noting that such cells are de-rived from embryos that many people believecarry moral status); Thomson (discussing valueof embryonic stem cell research); Shannon,From the Micro to the Macro, in Holland at 177(discussing value of embryonic stem cell research

and noting that until about fourteen days ofdevelopment blastomeres are not morally privi-leged by virtue of individuality or personhood;however noting that such embryos should not begenerated for research); Keith E. Latham andCarmen Sapienza, Developmental Potential as aCriterion for Understanding and Defining Em-bryos, 36 Conn. L.Rev. 1171, 1171–74 (2004)(criticizing the use of terms such as pre-implan-tation embryos and arguing that a measurablepotential for development beyond fertilization isa key concept in shaping the debate on treatmentof embryos); Ernle W.D. Young, Ethical Issues:A Secular Perspective, in Holland at 163 (discuss-ing the conflict between faith and reason on issueof when life begins and noting various criteriafor determining the point at which embryonicmaterial should be due respect); Maienschein at144–50 (discussing the ethical issues presentedby the first birth of a human from in vitro fertili-zation in 1978).

The importance of this discussion is height-ened by the number of cryopreserved pre-em-bryos. One study shows that there are morethan 400,000 cryopreserved pre-embryos in theUnited States, although only a small percentagehad been donated for research. David I. Hoff-man, et al., Cryopreserved Embryos in the UnitedStates and Their Availability for Research, 79 Fer-tility and Sterility 1063 (2003). The President’s


¶ 53 It is the balancing of these two pri-mary concerns that underscores the need forreasoned legislative, not judicial, decision-making as to the nature of a ‘‘person’’ underthe wrongful death statutes. Indeed, it isexactly this balance that led the currentPresident’s Commission on Bioethics to rec-ommend that Congress prohibit the use ofcryopreserved pre-embryos in research tothose developed beyond ten to fourteen daysafter fertilization. PCB at 223.15

¶ 54 We cite the above scientific and ethi-cal authorities to reflect why, given the bal-ancing of societal interests, courts should notexpand the scope of the wrongful death stat-ute absent legislative direction. It should beup to the Legislature and not the courts toconsider and balance the competing interestsand policy questions involved in whether tofurther expand the meaning of ‘‘person’’ be-yond that explained in Summerfield andwhen to consider life as beginning.

D. Case Law from Other Jurisdictions

¶ 55 The Jeters also rely on cases fromother jurisdictions to contend that, as a mat-ter of law and without further legislativeaction, this Court should interpret the word‘‘person’’ to include cryopreserved pre-em-bryos for purposes of the wrongful deathstatute. Consistent with Summerfield, thevast majority of jurisdictions have limited the

definition of ‘‘person’’ in wrongful death stat-utes to a viable fetus in vivo. Forsythe at498; Meade at 421–23. See also McClain v.Univ. of Mich. Bd. of Regents, 256 Mich.App.492, 665 N.W.2d 484, 486 (2003) (non-viablefetus not a person for purposes of wrongfuldeath statutes); Wiersma v. Maple LeafFarms, 543 N.W.2d 787, 790 (S.D.1996) (not-ing that majority of jurisdictions hold thatviability is element of wrongful death stat-utes); Thibert, 646 N.E.2d at 1027 n. 8(same); Connor v. Monkem Co., 898 S.W.2d89, 93 (Mo.1995) (same). We do not findpersuasive the cases relied upon by the Jet-ers for their argument to have this Courtexpand the law in this area.

¶ 56 The Jeters contend that eleven juris-dictions now provide that viability of a fetusis not an element for a claim for wrongfuldeath. However, none of these cases ex-tends wrongful death causes of action to invitro pre-embryos. Indeed, several of thecases the Jeters cite actually reject the Jet-ers’ position or hold a wrongful death claimmay be made regardless of viability, but onlyif the fetus is born alive.16 Other casesrelied on by the Jeters extended the cause ofaction to non-viable fetuses in vivo becausethe applicable wrongful death statutes specif-ically provided for such a cause of action,unlike Arizona’s wrongful death statutes.17

Commission has also cited that statistic. PCB at124.

15. Because of the division of the PCB on thisissue, it stated that ‘‘[t]his recommendationshould not be construed as silently endorsing (oropposing) embryo research at earlier stages.’’PCB at 223. While some PCB members opposedsuch research at any stage, others favored allow-ing research even beyond such point. See Per-sonal Statements of PCB members attached asappendices to the PCB at 229.

The Arizona Legislature has enacted legislationbarring state governmental funding of researchinvolving human cloning but not pre-embryos.2005 Ariz. Sess. Laws, ch. 180.

16. See Gentry v. Gilmore, 613 So.2d 1241, 1244(Ala.1993) (rejecting wrongful death action formiscarriage of non-viable, thirteen-week fetus);Smith v. Borello, 370 Md. 227, 804 A.2d 1151,1155–56 (App.2002) (no wrongful death actionfor nineteen-week, non-viable stillborn fetus);Crosby v. Glasscock Trucking Co., Inc., 340 S.C.626, 532 S.E.2d 856, 857 (2000) (estate of twen-ty-week, non-viable, stillborn fetus may not bringwrongful death action); Modaber v. Kelley, 232

Va. 60, 348 S.E.2d 233, 236–37 (1986) (denyingwrongful death recovery because unborn child isnot a ‘‘person’’ under wrongful death statutes).See also Thibert, 646 N.E.2d at 1027 (refusing toextend wrongful death statutes to non-viable fe-tus in vivo without legislative amendment; dis-tinguishing Torigian v. Watertown News Co., 352Mass. 446, 225 N.E.2d 926, 927 (1967), whichextended cause of action to non-viable fetus iffetus was born alive); Nealis v. Baird, 996 P.2d438, 454 (viability is not element if fetus wasborn alive); Ladov v. Skrentner, 431 Pa.Super.152, 636 A.2d 176, 182 (1994) (same); GroupHealth Assn., Inc. v. Blumenthal, 295 Md. 104,453 A.2d 1198, 1206 (1983) (same).

17. See Wiersma, 543 N.W.2d at 790 (statute pro-vided for wrongful death action of a person ‘‘in-cluding any unborn child’’); Connor, 898 S.W.2dat 93 (statute provided that human life begins atconception and unborn children have protectibleinterest in life with statutes to be construed toacknowledge all rights of unborn child at everystage of development); Smith v. Mercy Hosp. &Med. Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567,


As noted above, our Legislature has onlyrecently amended our criminal code to pro-vide criminal sanctions for the death of achild at any stage of development in thewomb. 2005 Ariz. Sess. Laws, ch. 188, §§ 4–7. It has not amended the wrongful deathstatute to provide for such a civil cause ofaction, let alone to an in vitro pre-embryo.

¶ 57 Two of the cases cited by the Jetersextended wrongful death actions to non-via-ble fetuses without legislative direction butrequired that the fetus be at some later stageof development in the womb. Porter v. Las-siter, 91 Ga.App. 712, 87 S.E.2d 100, 103(1955) (wrongful death statute applied afterquickening); Danos v. St. Pierre, 402 So.2d633, 636–37 (La.1981) (on rehearing, permit-ting recovery for death of six-month-old fetusstillborn in woman’s womb if, but for thefault of defendant, fetus ‘‘more probably thannot would have been born normally’’).18

¶ 58 The Jeters place great emphasis onFarley v. Sartin, 195 W.Va. 671, 466 S.E.2d522 (1995), which cited Summerfield in hold-ing that West Virginia’s nearly identicalwrongful death statutes permitted a cause ofaction for the death of a non-viable fetus.Id. at 534–35 (finding that viability was anarbitrary and unjust requirement to spliceonto the definition of person; instead, a ‘‘per-son’’ under the wrongful death statute shouldbegin at conception). However, the Farleycourt expressly limited its holding to allowingsuch wrongful death actions to embryos invivo, and ‘‘declin[ed] to address the issuesthat may arise with advances in medical tech-nology now enabling conception outside thewomb.’’ Id. at 533 n. 3. Instead, the courtfound that the Legislature should resolvesuch issues. Id.

¶ 59 The Jeters mistakenly suggest thatthe Ninth Circuit endorsed Farley because itdescribed Farley as ‘‘well-reasoned andthoughtful.’’ Santana v. Zilog, Inc., 95 F.3d780, 785 (9th Cir.1996). To the contrary, theNinth Circuit, applying Idaho law, declined

to follow Farley, noting that the West Virgi-nia Supreme Court was the only court torecognize a cause of action for a non-viablefetus without action of the state legislature.Id. The Ninth Circuit adopted the viabilityconcept endorsed by our supreme court inSummerfield, recognizing that, with regardto wrongful death actions, numerous courtshad used ‘‘viability as the dividing line for‘personhood’ because it denotes the point atwhich the fetus, in essence, becomes a per-son, or a ‘separate entity capable of maintain-ing an independent action in its own right.’ ’’Id. at 783 (internal citations omitted). Thecourt found this test was particularly appro-priate given that ‘‘the uncertainty of whethera pregnancy will culminate in a live birth isgreatest at the beginning of a pregnancy.Thus, [courts] refuse to allow recovery be-cause of the uncertainty and unpredictabilityof actions based on speculation that the fetuswould have otherwise survived to viability.’’Id. at 783–84 (citations omitted). This rea-soning is even more compelling here becausethe pre-embryos were cryopreserved for pos-sible future use and might never have beenimplanted in the womb, much less survive toa live birth.

E. Conclusion

¶ 60 We decline to expand the meaning of‘‘person’’ in the wrongful death statute toinclude a three-day-old eight-celled cryopre-served pre-embryo. Such a decision is bestleft to the elected representatives of the peo-ple of Arizona, subject to constitutional re-straints, not a court.

¶ 61 Our conclusion that, absent clear leg-islative direction three-day-old, eight-cellpre-embryos are not ‘‘persons’’ under thewrongful death statutes, does not mean thatthey are property. As noted by the Tennes-see Supreme Court, relying on the Report ofthe American Fertilization Society’s EthicalConsiderations of the New Reproductive

560 N.E.2d 1164, 1168–71 (1990) (statute provid-ed cause of action for wrongful death of fetusinjured after conception). Compare 66 FederalCredit Union v. Tucker, 853 So.2d 104, 114 (Miss.2003) (wrongful death cause of action existed fornon-viable fetus in vivo because statute providedfor action for any person and courts had applied

criminal code with similar language to apply todeath of non-viable fetus).

18. Louisiana now defines an in vitro fertilizedovum as a ‘‘juridicial person’’ that may not bedestroyed. La. Stat. Ann. §§ 9:123 (Supp.2004),9:129 (1991).


Technologies, pre-embryos occupy an interimcategory between mere human tissue andpersons because of their potential to becomepersons. Accordingly, such embryos are duevarying degrees of special respect dependenton the issue involved. Davis, 842 S.W.2d at596–98. We hold only that, for purposes ofArizona’s wrongful death statutes, a cryopre-served, three-day old pre-embryo is not aperson.

¶ 62 This holding does not mean the Jetersare denied all causes of action for their loss.As the rest of this opinion explains, the Jet-ers may bring other types of actions for theallegedly wrongful loss or destruction of thepre-embryos. Those actions insure that tort-feasors may be held liable for their wrongfulacts while avoiding judicial intrusion on theLegislature’s need to balance various com-peting interests in deciding whether to ex-pand the breadth of wrongful death actions.

IV. The Claim for the Negligent Loss orDestruction of the Pre–Embryos

[7] ¶ 63 The Jeters assert Arizona shouldrecognize a common-law claim for the negli-gent loss or destruction of the pre-embryosbased upon both their right to control dispo-sition and Mayo’s undertaking of a duty ofcare.19 In support of their argument, theJeters rely on two Restatement provisionsand cases from other jurisdictions recogniz-ing causes of action for intentional and negli-gent harm to unborn children.

¶ 64 The cases relied upon by the Jetersprovide us with little guidance. For in-stance, in Smith v. Borello, the court permit-ted a mother to recover emotional-distressdamages for the loss of her nonviable fetus,but only as part of her own personal injuryaction. 804 A.2d at 1163. Similarly, in

McClain, the Michigan Court of Appealsheld that a mother who suffered a miscar-riage of a nonviable fetus carried in herwomb could sue for emotional distress dam-ages but only because the miscarriage was aform of physical impact so that the loss ofher pregnancy amounted to a personal inju-ry. 665 N.W.2d at 486–88. Mrs. Jeter hasnot alleged that she suffered any personalinjury as a result of the loss of the frozenpre-embryos.

¶ 65 The remaining published decision cit-ed by the Jeters is also not on point. InPerry–Rogers v. Obasaju, 282 A.D.2d 231,723 N.Y.S.2d 28, 29 (2001), the plaintiffssought malpractice damages for the emotion-al distress arising from the defendant’s mis-taken implantation of their embryos into an-other woman’s uterus, which resulted in achild being born and separated from themfor four months after birth.20

¶ 66 The Jeters next rely on the Restate-ment (Second) of Torts (‘‘Restatement’’)§ 868 (1969), governing ‘‘Interference withDead Bodies.’’ This section states that‘‘[o]ne who intentionally, recklessly or negli-gently removes, withholds, mutilates or oper-ates upon the body of a dead person orprevents its proper interment or cremation issubject to liability to a member of the familyof the deceased who is entitled to dispositionof the body.’’ They argue that this Courtshould recognize a right to control frozenpre-embryos similar to the right to controlthe disposition of dead bodies under Section868 and allow them to maintain an action foremotional distress. The Jeters assert thatsuch a quasi-property right is recognized inthe few cases that have discussed custodyissues involving frozen pre-embryos.

19. Mayo argues the Jeters abandoned their claimfor ‘‘negligence—loss of irreplaceable property.’’We disagree. The Jeters initially labeled counttwo of their complaint as ‘‘negligence-loss ofirreplaceable property’’ but subsequently in thedismissal pleadings and the appellate briefs re-ferred to it as a claim for ‘‘negligent loss of viablehuman embryos.’’ Regardless of the label at-tached to the claim, the substance has remainedthe same; the Jeters have consistently pursued aclaim for the negligent loss or destruction of thepre-embryos and never abandoned count two oftheir complaint.

20. The Jeters also cite an unpublished decision,Del Zio v. Presbyterian Hosp., 1978 U.S. Dist.LEXIS 14450 (S.D.N.Y.1978), that involvedclaims for conversion and intentional infliction ofemotional distress for intentional destruction ofunfertilized gametes. Our rules prohibit partiesfrom citing unpublished decisions from otherjurisdictions. Arizona Rule of Civil AppellateProcedure 28(c); Walden Books Co. v. Ariz. Dept.of Rev., 198 Ariz. 584, 589, ¶ 23, 12 P.3d 809, 814(App.2000). Accordingly, we do not address DelZio.


¶ 67 The two cases relied upon by theJeters are distinguishable from this case, andneither allows for an emotional distress claimunder these circumstances or adopts Re-statement § 868 as the basis for such a claim.In fact, neither case discusses § 868. InDavis, the divorcing parties each sought cus-tody of cryopreserved pre-embryos createdduring the marriage. 842 S.W.2d at 594.The Tennessee Supreme Court not only re-fused to equate cryopreserved pre-embryoswith human beings (alive or deceased), itexpressly noted that they were not personsfor purposes of Tennessee’s wrongful deathstatutes but occupied ‘‘an interim category’’between persons and human tissue. Id. at594, 596–98. See also PCB at 223 (noting thatcryopreserved pre-embryos at less than four-teen days of development should be accordeddignity). Accord Robertson at 446.

¶ 68 In York v. Jones, 717 F.Supp. 421, 424(E.D.Va.1989), the plaintiffs asserted breachof contract and related claims seeking therelease and transfer of their cryopreservedpre-embryos from one fertility clinic to an-other. The court specifically found that theplaintiffs could not pursue an emotional dis-tress claim for the clinic’s refusal to transferthe pre-embryos absent some bodily harm tothe plaintiffs or exceptional circumstances.Id. at 423 n. 2.

¶ 69 We have already determined that un-der Arizona law the Jeters’ cryopreservednon-viable pre-embryos were not ‘‘persons’’for purposes of our wrongful death statutes.Therefore, a Restatement provision govern-ing the right to control dead bodies is notpertinent to this case. While the Jeters areunderstandably distressed by the loss or de-struction of their pre-embryos, Mayo’s al-leged loss of them is not analogous to thenegligent disposition of a deceased’s bodysuch as to qualify the injured party to recov-ery under Restatement § 868.

¶ 70 The Jeters may, however, pursue aclaim for the loss or destruction of the pre-embryos based upon Restatement § 323(1965). This provision has been adopted asthe law in Arizona, and provides:

One who undertakes, gratuitously or forconsideration,[ 21] to render services to an-other which he should recognize as neces-sary for the protection of the other’s per-son or things, is subject to liability to theother for physical harm resulting from hisfailure to exercise reasonable care to per-form his undertaking, if:

(a) his failure to exercise such care in-creases the risk of such harm, or

(b) the harm is suffered because of theother’s reliance upon the undertaking.

In addition to physical harm, the person un-dertaking the act may be liable under Re-statement § 323 for resulting economicharm. Lloyd v. State Farm Mut. Auto. Ins.Co., 176 Ariz. 247, 250, 860 P.2d 1300, 1303(App.1992).

¶ 71 The Jeters have alleged that Mayoundertook, for consideration, the harvestingand storing of their pre-embryos, servicesthat Mayo should have recognized as neces-sary for the pre-embyros’ care. Under theRestatement provision, the Jeters couldmaintain an action for harm resulting fromthe loss of ‘‘things.’’ Given the special re-spect due to pre-embyros, the Jeters are alsoable to maintain an action against Mayo forany physical or economic harm resultingfrom that failure to exercise reasonable careto the extent Mayo’s actions either causedthe alleged harm, the loss or destruction ofthe pre-embryos, or increased the risk ofthat harm. Restatement § 323; Lloyd, 176Ariz. at 250, 860 P.2d at 1303.

¶ 72 Arizona courts have adopted and ap-plied Restatement § 323 in the medical mal-practice context. See Thompson v. Sun CityCmty. Hosp., Inc., 141 Ariz. 597, 607–08, 688P.2d 605, 615–16 (1984) (reversing judgmentin favor of hospital in medical malpracticeaction for failure to give loss of chance ofrecovery instruction based on Restatement§ 323). Moreover, as the scientific technolo-gy at issue is relatively new, it is not surpris-ing that the Restatement provision has yet tobe applied in this precise circumstance.Mayo has not presented any grounds why

21. Mayo asserts that this Restatement provisiononly applies to one who ‘‘voluntarily’’ undertakesan act for another. Yet, the Restatement provi-

sion clearly applies to one who also undertakesan act ‘‘for consideration.’’ Restatement § 323.


this provision may not serve as the basis forsuch a claim.

[8] ¶ 73 In their briefs to this Court, theJeters interpreted Lloyd as precluding themfrom seeking one of their objectives—emo-tional distress damages for the negligent lossor destruction of the embryos. However,Lloyd did not address whether a plaintiff isallowed to recover emotional distress dam-ages for a tortious loss of property. 176Ariz. at 250, 860 P.2d at 1303. While a partycannot bring a claim for negligent inflictionof emotional distress based merely on thenegligent destruction of property,22 a partycan recover damages for emotional distressarising from the tortious loss of property ifthe emotional distress is unrelated to thepecuniary loss. Reed v. Mitchell & Timba-nard, P.C., 183 Ariz. 313, 318–19, 903 P.2d621, 626–27 (App.1995). See also Thomas v.Goudreault, 163 Ariz. 159, 165–67, 786 P.2d1010, 1016–18 (App.1989) (landlord’s breachof Landlord and Tenant Act permitted ten-ants to recover emotional distress damagesfor annoyance and discomfort of living ininadequate housing).

¶ 74 Jurisdictions are divided on whetherpersons in the same position as the Jetersmay seek emotional distress damages for theloss of a nonviable fetus or embryo absent apersonal injury to themselves. See general-ly, James L. Ishen, Recovery of Damages forGrief or Mental Anguish Resulting fromDeath of Child, 45 A.L.R.4th 234 § 8 (1986and Supp.2004). Given the interim status ofpre-embryos and the special respect theyshould be accorded in certain situations,Davis, 842 S.W.2d at 594, 596, we need notdecide on this limited record whether theJeters’ loss might entitle them to emotional

distress damages. We leave it to the superi-or court on remand to determine whether,after further factual development, such emo-tional distress damages are recoverable.

¶ 75 Accordingly, the Jeters may sue un-der § 323 for the negligent loss or destruc-tion of their pre-embryos.

V. The Claim for Breach of FiduciaryDuty

[9–11] ¶ 76 In Count Three of their com-plaint, the Jeters asserted a claim for breachof fiduciary duty, arguing that Mayo hadassumed fiduciary duties to ‘‘properly store,safeguard, secure, maintain or account for’’the pre-embryos, and because they were ‘‘po-tentially viable human beings, the custody ofthe embryos were [sic] entitled to ‘specialrespect’ and [the] highest standards of care.’’Mayo sought dismissal of this count on theground that the medical malpractice act lim-its the grounds upon which an action may bemaintained against a health care provider forservices rendered and the breach of fiduciaryduty claim was not one of the enumeratedgrounds under the statute. The superiorcourt agreed and dismissed the count. Wehold that based on the record presented, itwas premature for the superior court to holdthat the medical malpractice act bars thisclaim.23

¶ 77 Section 12–562(A) provides that ‘‘[a]medical malpractice action shall not bebrought against a licensed health care pro-vider except upon the grounds set forth in§ 12–561.’’ 24 Section 12–561(2) states:

‘‘Medical malpractice action’’ or ‘‘cause ofaction for medical malpractice’’ means anaction for injury or death against a li-

22. Roman v. Carroll, 127 Ariz. 398, 399, 621 P.2d307, 308 (App.1980) (damages are not recovera-ble for negligent infliction of emotional distressfrom witnessing injury to property).

23. On appeal, the Jeters argue that to the extentthe medical malpractice act bars this claim, it isunconstitutional. In interpreting a statute, weare not bound by the arguments of the parties ifthat would lead to an incorrect result. Lyons v.State Board of Equalization, 209 Ariz. 497, 502,n. 2, 104 P.3d 867, 872 (App.2005). Moreover,we should avoid addressing constitutional issuesrelating to a statute unless absolutely necessaryto resolve a case. City of Tempe v. Outdoor

Systems, Inc., 201 Ariz. 106, 109, ¶ 7, 32 P.3d 31,34 (App.2001). Accordingly, we do not addressthe Jeters’ constitutional claim on this issue be-cause the viability of their claim can be resolvedon other grounds.

24. The Arizona Supreme Court has held thatsubsection (B) of A.R.S. § 12–562 is unconstitu-tional to the extent it abrogates a plaintiff’s ac-tion for battery, regardless of the fact the plaintiffcould still bring an action under other theories ofliability. Duncan v. Scottsdale Med. Imaging,Ltd., 205 Ariz. 306, 314, ¶ 35, 70 P.3d 435, 444(2003).


censed health care provider based uponsuch provider’s alleged negligence, miscon-duct, errors or omissions, or breach ofcontract in the rendering of health care,medical services, nursing services or otherhealth-related services or for the renderingof such health care, medical services, nurs-ing services or other health-related ser-vices, without express or implied consentincluding an action based upon the allegednegligence, misconduct, errors or omis-sions or breach of contract in collecting,processing or distributing whole humanblood, blood components, plasma, bloodfractions or blood derivatives.

A.R.S. § 12–561(2) (emphasis added). TheJeters argue that these provisions are anunconstitutional abrogation of their right torecovery for breach of fiduciary duty in viola-tion of the anti-abrogation clause of the Ari-zona Constitution. Ariz. Const. art. 18, § 6.

¶ 78 At oral argument in this Court, theJeters stated that they had not sought tobring an action for medical malpractice.While they conceded it might be difficult tocontend the storage of the pre-embryos wasnot related to the provision of medical ser-vices, the record is undeveloped on that is-sue. Mayo, on the other hand, properly con-ceded that if the loss of the pre-embryos wasnot the provision of health care services asdefined by the statute, the medical malprac-tice act would not preclude the Jeters fromsuing under an alternative theory of liability.

¶ 79 Whether an action sounds in medicalmalpractice depends upon whether the con-duct causing the injury consisted of ‘‘healthcare, medical services, nursing services orother health-related services’’ as defined byA.R.S. § 12–561(2). Whether the conduct issuch a service depends on a number of fac-tors, including whether the wrong involvedthe exercise of professional judgment in thetreatment of the patient by health care pro-viders or merely a failure to keep the hos-pital premises and equipment properlymaintained. See generally Holly PiehlerRockwell, What Patient Claims AgainstDoctor, Hospital, or Similar Health CareProvider Are Not Subject to Statutes Spe-cifically Governing Actions and Damagesfor Medical Malpractice, 89 A.L.R.4th 887

(1991) (collecting cases). Compare Harts v.Caylor–Nickel Hosp., Inc., 553 N.E.2d 874(Ind.App.1990) (action based on patient’sfall from hospital bed was one for ordinarynegligence rather than malpractice whenfailure of bed rails was neither part of diag-nosis and treatment nor integral to the pro-vision of medical treatment) with PutnamCounty Hosp. v. Sells, 619 N.E.2d 968, 971(Ind.App.1993) (plaintiff’s fall from recoveryroom table while under anesthesia was mal-practice claim rather than premises liabilityclaim because it involved allegedly negligenthealth care decisions to fail to properlytrain and supervise staff with regard toproper monitoring of such patients).

¶ 80 Accordingly, the medical malpracticeact does not shield health care providersfrom all other negligence actions that may bebrought against them; it simply delineatesthe contours of claims that may be assertedagainst them arising from alleged medicalnegligence. A.R.S. §§ 12–561(2) and –562(A). By way of illustration, health careproviders may still be sued for liability aris-ing from an automobile accident or a hospitalmay be found negligent for a patient’s slipand fall in a hospital hallway. These arenegligent acts that have nothing to do withthe rendering of medical or health care-relat-ed services.

¶ 81 Applying the above principles, at thisstage of the litigation, it is premature todiscern whether the facts rise to the level ofmedical malpractice. For example, it is un-known whether the pre-embryos were lost,destroyed or given to the wrong parties, orhow any of these events may have occurred.If the claim is grounded in Mayo’s negligentstorage of the pre-embryos by non-healthcare personnel not using any professionaljudgment, it is arguably not a ‘‘medical mal-practice’’ action governed by the medicalmalpractice act. A.R.S. § 12–562(A).

¶ 82 It is also unclear what interest theJeters claim was harmed by the allegedbreach of fiduciary duty. If the only interestclaimed by the Jeters is their ‘‘rights’’ to thepre-embryos, presumably the medical mal-practice act does not preclude such an action,especially if the storage and the cause of thealleged loss were not health care services as


defined by the statute. Alternatively, if theinterests the Jeters claim were harmed areMrs. Jeter’s interests in her own healthcare,then the claim would presumably amount toone for medical malpractice. See Duncan,205 Ariz. at 314, ¶ 32, 70 P.3d at 443 (actionsfor battery and for medical malpractice pre-serve distinct societal interests in the physi-cian-patient relationship).

¶ 83 Depending on the factual basis fortheir claim and the interests they seek toprotect, it is possible that the Jeters’ breachof fiduciary duty claim for the loss or de-struction of their pre-embryos does not ariseout of the rendering of ‘‘medical’’ or ‘‘health-related’’ services by Mayo. If so, such a claimwould not be within the ambit of or barredby A.R.S. §§ 12–561(2) and –562(A).

¶ 84 Given the lack of factual developmentin this matter, we find premature the appli-cation of the medical malpractice act to thebreach of fiduciary duty claim and the result-ing dismissal of that claim.

VI. The Breach of Bailment Claim

[12] ¶ 85 The Jeters challenge the dis-missal of their claim for breach of a bailmentcontract. Mayo argued that the Jeters didnot have a written bailment contract as need-ed to pursue a breach of contract claim underthe medical malpractice act. The medicalmalpractice act provides that ‘‘[a] medicalmalpractice action based upon breach of con-tract for professional services shall not bebrought unless such contract is in writing.’’A.R.S. § 12–562(C). Neither of the superiorcourt’s minute entry rulings expressly ad-dressed this issue. By dismissing the Jeters’action, however, the court implicitly foundthat the Jeters had failed to present evidenceof a written contract sufficient to satisfy thewriting requirement of the malpractice stat-ute.

¶ 86 In response to Mayo’s motion to dis-miss, the Jeters submitted three writtenagreements that they alleged evidenced abailment contract between the parties.

These agreements set forth the Jeters’ ‘‘Con-sent Regarding IVF [in vitro fertilization]Services’’ and ‘‘Consent Regarding Thawingof Cryopreserved Embryos.’’ They reflectan agreement by the parties that Mayo wasto cryopreserve and store the pre-embryosfor the Jeters’ subsequent use or other in-structions as to their disposition. The Jetersalso submitted a copy of their ‘‘Request forTransfer of Cryopreserved Embryo or Se-men Specimens and Assumption of Risk,’’which exhibited an obligation on the part ofMayo to deliver the ten remaining pre-em-bryos (in 4 straws) to the Jeters for their useat another clinic.

¶ 87 These documents, when consideredtogether, sufficiently demonstrate a writtenbailment contract needed to withstand a mo-tion to dismiss under A.R.S. § 12–562(C).25

See Nava v. Truly Nolen Exterminating ofHouston, Inc., 140 Ariz. 497, 500, 683 P.2d296, 299 (App.1984) (when personalty is deliv-ered by another in trust for a specific pur-pose with an express or implied agreement,the property will be returned or accountedfor when that purpose is accomplished, thetransaction constitutes a bailment); York,717 F.Supp. at 425 (cryopreservation agree-ment created a bailment contract).

¶ 88 Mayo argues that a consent formshould not be seen as a written contract, noless a contract of bailment. While that argu-ment may be correct in an ordinary consentform for performance of health care services,the consent forms here expressly reflectedthat the Jeters and Mayo were agreeing thatMayo would cryopreserve and store the pre-embryos. Thus, our decision that the stor-age agreements constitute a written bailmentcontract is limited to these particular circum-stances.

¶ 89 This claim does not represent a con-ventional medical malpractice action. Suchactions against professionals usually arise intort, not contract. ‘‘As a matter of publicpolicy, attorneys, accountants, and other pro-fessionals owe special duties to their clients,

25. In light of our decision that the Jeters present-ed a sufficient written contract to satisfy therequirements of A.R.S. § 12–562(C), we need notaddress their argument that subsection (C) of themedical malpractice act is unconstitutional un-

der the Arizona Constitution’s anti-abrogationclause. Outdoor Sys., Inc., 201 Ariz. at 109, ¶ 7,32 P.3d at 34 (judicial policy is to avoid address-ing constitutional issues unless absolutely neces-sary to resolve case).


and breaches of those duties are generallyrecognized as torts.’’ Barmat v. John andJane Doe Partners A–D, 155 Ariz. 519, 523,747 P.2d 1218, 1222 (1987). An actionagainst a professional sounds in contract onlywhen ‘‘promises [are] expressly made or im-plied from conduct.’’ Id.

¶ 90 Here, Mayo expressly promised tostore the Jeters’ pre-embryos, a ‘‘special con-tractual agreement’’ apart from any medicalprocurement of them. See id. at 524, 747P.2d at 1223 (‘‘Absent some special contrac-tual relationship or undertaking betweenthose in the professional relationship, TTT aprofessional malpractice action does not‘arise’ from contract, but rather from tort.’’).As such, the Jeters are entitled to proceedwith their claim that Mayo breached thebailment contract.

CONCLUSION

¶ 91 We affirm the superior court’s dis-missal of the wrongful death claim. We re-verse the court’s dismissal of the claim fornegligent loss or destruction of the pre-em-bryos, breach of fiduciary duty and breach ofa bailment contract. We remand this matterfor further proceedings consistent with thisdecision.

PHILIP HALL, P.J., concurring.

TIMMER, Judge, specially concurring.

¶ 92 Although I concur in the Majority’sholding that pre-implantation fertilized hu-man eggs are not ‘‘persons’’ for purposes ofA.R.S. § 12–611, I write separately because Ibelieve the Majority mistakenly concentratesmuch of its analysis on the debate concerningwhen human life begins rather than when thelegislature intended a wrongful death causeof action to begin.

¶ 93 In my view, the Majority’s ultimateholding is correctly reached by following theanalytical model established by our supremecourt in Summerfield. There, the court rea-soned that employing traditional principles ofstatutory construction to divine whether thelegislature intended the term ‘‘person’’ toinclude a viable fetus would be unworkablebecause it is unlikely the legislature consid-ered the issue when it passed the wrongful

death statute. 144 Ariz. at 475, 698 P.2d at720. Thus, the court resolved the issue bystudying the statute, the best method to fur-ther the general legislative goal in adoptingthe statute, and common law principles gov-erning its application. Id.

¶ 94 The Majority aptly applies the Sum-merfield model of analysis to conclude that‘‘a fertilized human egg outside the womb isnot a ‘person’ within the meaning of A.R.S.§ 12–611 regardless of whether that ferti-lized egg constitutes human life or potentialhuman life.’’ See ¶ 28, supra. I agree withthis reasoning and, for that reason alone, Iconcur with the Majority’s resolution of thefirst issue on appeal. However, in my view,resolution of the issue ends after applicationof Summerfield. Consequently, I believe theMajority’s discussion of the debate concern-ing when life begins is unnecessary, and Itherefore do not join in this portion of thedecision.

,

Randolph J. HAINES and Kathleen N.Kenney–Haines, husband and wife,Plaintiffs–Appellants/Cross–Appellees,

v.

GOLDFIELD PROPERTY OWNERS AS-SOCIATION, an Arizona non-profit

corporation, Defendant–Appellee,

and

Fountain Foothills Limited Partnership,an Arizona limited partnership; Foun-tain Foothills 80, L.L.C., an Arizona lim-ited liability company, Defendants–Ap-pellees/Cross–Appellants.

No. 1 CA–CV 04–0652.

Court of Appeals of Arizona,Division 1, Department C.

Oct. 27, 2005.

Background: Property owners sued otherowner of 45 percent of total acreage of

1246–1256 121 PACIFIC REPORTER, 3d SERIES · Belinda L. JETER, a married woman; William R. Jeter,...

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