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Jeter v. Mayo Clinic Arizona10/27/2005
the pre-embryos, breach of fiduciary duty and breach of a bailment contract. We remand this matter for further proceedings consistent with this decision.
DONN KESSLER, Judge
CONCURRING:
PHILIP HALL, Presiding Judge
TIMMER, Judge, specially concurring
Although I concur in the Majority's holding that preimplantation fertilized human eggs are not "persons" for purposes of A.R.S. § 12-611, I write separately because I believe the Majority mistakenly concentrates much of its analysis on the debate concerning when human life begins rather than when the legislature intended a wrongful death cause of action to begin.
In my view, the Majority's ultimate holding is correctly reached by following the analytical model established by our supreme court in Summerfield. There, the court reasoned that employing traditional principles of statutory construction to divine whether the legislature intended the term "person" to include a viable fetus would be unworkable because it is unlikely the legislature considered the issue when it passed the wrongful death statute. 144 Ariz. at 475, 698 P.2d at 720. Thus, the court resolved the issue by studying the statute, the best method to further the general legislative goal in adopting the statute, and common law principles governing its application. Id.
The Majority aptly applies the Summerfield model of analysis to conclude that "a fertilized human egg outside the womb is not a 'person' within the meaning of A.R.S. § 12-611 regardless of whether that fertilized egg constitutes human life or potential human life." See 28, supra. I agree with this reasoning and, for that reason alone, I concur with the Majority's resolution of the first issue on appeal. However, in my view, resolution of the issue ends after application of Summerfield. Consequently, I believe the Majority's discussion of the debate concerning when life begins is unnecessary, and I therefore do not join in this portion of the decision.
Ann A. Scott Timmer, Judge
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