The ’estate’ of a woman’s aborted embryo is suing her doctors; Audra Petrolle and Scott Ghormley, family law attorneys at Rose Law Group, comment

By Kylie Cheung | Jezebel

File this one under “we live in hell”: The doctors of an Arizona woman who had an abortion in 2018 are being sued by the estate of her aborted embryo, created by her ex-husband. Rolling Stone reports that the judge is currently on the brink of deciding whether the lawsuit—first filed in 2020—will go to trial. The case largely hinges on whether the woman’s doctors violated Arizona’s informed consent statute, which, among other things, requires a pregnant person seeking an abortion to sign a form confirming they’ve been warned about supposed “medical risks” associated with abortion care (which is highly safe). Prospective patients must also confirm that they’ve been told that the father would be liable for child support if the pregnancy is carried to term and that the “father of the unborn child” can sue if he was married to the person who had the abortion at the time.

And that’s just what the woman’s ex-husband, Mario Villegas, is doing. Should Villegas’ case go to trial and a jury side with him, this would be the first time an aborted embryo has triumphed in a wrongful death lawsuit—a precedent that anti-abortion activists and abusive exes could wield to unleash hell on pregnant people.

“In 2022, the Supreme Court reversed the 1973 landmark decision in Roe v. Wade. This case on purported lack of informed consent was filed in 2020. Therefore, I would anticipate a preliminary debate as to whether or not Roe v. Wade still controls the outcome here.” -Audra Petrolle, Rose Law Group Family Law Attorney

Last week, lawyers representing the woman’s doctors and the Phoenix-based practice, Camelback Family Planning, asked the judge to issue a summary judgment finding that the woman had, indeed, received informed consent—something that both the woman’s paperwork and testimony all attest to—and stop the potential trial. Villegas’ lawyers argue his ex-wife’s consent couldn’t possibly have been informed, because the clinic’s paperwork didn’t use the phrase “unborn child” when describing the embryo, among other bizarre, alleged technical faults in the information the clinic provided to the woman. Despite these claims from Villegas, testimony from his ex-wife shows she was clear-eyed about the decision to have an abortion. “I never wanted children and he knew that. … I barely take care of myself as it is,” she said. She also testified that the pregnancy came toward the end of the relationship, and she’d believed her then-husband had had a vasectomy.


“The U.S. Supreme Court’s 2022 overturning of Roe v. Wade, which left it to the states to determine abortion laws, has created questions that we don’t quite know the answers to yet. While this case is centered on Arizona’s informed consent statute, it will be interesting to see how much the court allows Roe v. Wade to influence its decision, if at all, given that the initial filing predates the Roe v. Wade ruling. If the case proceeds to trial, I am sure many will also be paying close attention to see if this case changes our general understanding of fetal rights.” -Scott Ghormley, Rose Law Group Family Law Attorney

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September 2022