Family Law

Time For A New Tort: Reproductive Negligence

A new framework for our increasingly complicated world of reproduction has been proposed, and it's starting to gain traction in the courts.

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More information has come to light regarding one of the two catastrophic storage failures of embryos last month. Weirdly, two freezers storing huge amounts of genetic material both failed on March 4, 2018. The new news is not good, especially from University Hospitals in Cleveland (the other clinic’s in San Francisco). What looked like a couple thousand embryos and eggs at risk from 700 families has now been updated: over 4,000 have been deemed unsalvageable, and over 950 families affected. It appears that human error is the culprit. Between problems with a liquid nitrogen “autofill” function, and a warning alarm being mistakenly or wrongfully turned off, no one was alerted when temperatures rose to destructive levels on an unstaffed Saturday night.

As I mentioned previously, lawyers got involved very quickly. Heartbroken hopeful parents are frustratingly asking, “What are our legal remedies?” That question is a difficult one to answer.

The Legal Picture Is Bleak. Dov Fox, a law Professor and the Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law, argued in a law review article published last year that it is time for a new cause of action that recognizes the depth of value and loss when reproductive choices are confounded by the negligence or wrongdoing of others. In his essay, entitled Reproductive Negligence and published in the Columbia Law Review, Fox paints a depressing picture of the current legal landscape.

Courts routinely decline to grant remedies when reproductive professionals negligently deprive, impose, or confound procreation. When pregnancy or parenthood is wrongfully deprived, the obstacle to recovery is that these injuries often do not involve physical harm or property loss. When procreation is imposed, courts more often than not insist that any burdens of parenthood are offset of by its inevitable “joys and benefits.” And when precreation is confounded in ways that frustrate plans for a child of a particular type, courts typically deny redress under the law for fear of validating “parents’ disparagement… of their child’s life.”

Wow. I am a huge fan of the miracle work that fertility clinics perform. Some of my favorite people are reproductive endocrinologists. But I agree that the law needs to do better when it comes to finding justice for those wronged.

A New Approach. Fox argues that reproductive harms should not be brushed off for fear of devaluing children or parenthood… or the wish not to be parents. (There are people who don’t want to devote their lives to tiny, messy humans? Weird.) These are decisions that “shape who people are, what they do, and how they want to be remembered,” as Fox puts it. “Many people find profound meaning and fulfillment either in pregnancy and parenthood or else in the aims or attachments that freedom from those roles facilitates.”

Fox divides the landscape of reproductive wrongs into three parcels: 1) forcing unwanted pregnancy or parenthood (aka a botched vasectomy); 2) preventing wanted reproduction (like, for example, a hospital losing all your embryos); and 3) disrupting plans to have a child with particular genetic traits (such as wanting a child genetically related to you, instead of having your embryos accidentally switched with other patients’). He proposes distinct causes of action for each. He refers to these as rights against procreation imposed, deprived, and confounded.

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Fox lays out factors for a court to consider when determining damages. First, he suggests that a court should determine the “severity of the reproductive injury” as a function of the “practical consequences for the lives of the victims.” In other words, how exactly were victims affected by the wrongdoing? In the Ash case from the University Hospitals disaster, for example — where one partner had cancer and the couple entrusted their only chance for a biological child in the care of the clinic — damages are probably severe. In other cases, where a couple had decided not to use the material they created, for example, because they had since divorced, damages would be significantly lower.

Fox suggests a second factor to determine damages: the extent to which the misconduct, and not some other factor, is responsible for the reproductive loss. Meaning that a fertility clinic should have to pay only for that portion of the fault it’s responsible for. What percentage of the fact that no baby will be born is due to the freezer failure, for example, as opposed to preexisting infertility? Under this paradigm of “probablistic recovery,” if wrongfully destroyed embryos never had much of a chance of resulting in a child, the damages should be proportionately low.

Putting A Price Tag On Our Hopes And Dreams. I asked Fox what advice he would give to patients who lost embryos with the clinics in San Francisco, Cleveland, or elsewhere. He said that those willing to get an attorney and bring suit will need to tell their stories. “Courts struggle with finding physical harm, breach of contract, or emotional distress in these cases. But the damage is real, and it is different and often greater than” traditionally recognized harms.

Lots of people who want to have children hope they’ll be genetically related to themselves. Here, U.S. courts can take a page from those abroad. In an IVF mix-up case I profiled last year, the Singapore Supreme Court relied heavily on Fox’s essay to establish a novel right to recover for the “loss of genetic affinity.” It’s not easy to measure, but compelling testimony can help open judges’ eyes to the loss and its magnitude.

That’s a lot to think about. And it’s just the tip of the iceberg. The human drive to care deeply about one’s family life makes it only natural to put similarly deep thought into fault and liability when things go wrong. Kudos to Fox for proposing a new framework for our increasingly complicated world of reproduction and stimulating a much-needed conversation that’s starting to gain traction in the courts.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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