A Chicago judge has ruled that an embryo mistakenly discarded by an Illinois fertility clinic was a 'human' and its parents can sue under the state's wrongful death law.

Circuit Court Judge Jeffrey Lawrence ruled "a pre-embryo is a 'human being' within the ... Wrongful Death Act and that a claim lies for its wrongful destruction whether or not it is implanted in its mother's womb."

The plaintiffs, Alison Miller and Todd Parrish, sought fertility services from the Center for Human Reproduction and successfully created one fertilized egg. A clinic worker later discarded it "in error."

"Somebody just threw out the stuff," says James Costello, an attorney for Miller and Parrish. "They were shocked, of course, when it happened.

"The issue becomes 'what do you do now?'" Costello says. "It certainly is something more than somebody throwing out some tissue."

In his decision, Judge Lawrence wrote that he was following the state's Wrongful Death Act which permits women to sue if their unborn children are killed in an attack or accident.

"Philosophers and theologians may debate, but there is no doubt in the mind of the Illinois legislature when life begins. It begins at conception," Lawrence wrote.

"There are hundreds of thousands of embryos frozen in clinics," John Mayoue, an Atlanta family attorney who has written extensively on in vitro law and ethics, told the Chicago Daily Herald. "Are we then going to elevate those clinics to the status of an orphanage?

"If I'm a person who owns an IVF clinic, I don't want to be storing or be responsible for the continuation of this life form. What kind of insurance rates would you have? We are considering embryos to be property for certain purposes and life for others. And that's the incongruity," Mayoue notes.

In earlier actions, the courts had dismissed the wrongful death counts, but Lawrence reversed those decisions because the earlier judges failed to provide explanations for their decisions.

"As one appellate court has put the matter, everyone, including litigants, attorneys, the public and 'legal history in general' is entitled to know why a court does what it does," Lawrence wrote.

Despite the ruling's implications for the abortion issue, plaintiffs attorney Costello says it had no bearing on his clients filing the case.

"They're interested in being parents. They couldn't care less about Roe v. Wade."