Family Law

Couple Sues CT Fertility For Switching Their Embryos – It’s Time A U.S. Court Recognized Genetically Related Damages

How does a court decide whether a couple is entitled to damages?

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Technology is generally a wonderful thing. Reproductive technology, in particular, gets full credit for the miracles it has worked. But with cutting-edge technology also comes a lot of user error. Unfortunately, the frequency of medical errors and embryo mix-ups may be more common than we feared. The latest unsettling case involves the now defunct Connecticut clinic, CT Fertility, P.C.

In 2015, a married couple, now living in the United Kingdom, turned to the Trumbull, Connecticut-based fertility clinic for help conceiving a child. The couple chose an anonymous egg donor, presumably because the wife’s eggs were not medically viable for the process. The donor’s ova were fertilized with the husband’s sperm, and a resulting embryo was transferred to the wife’s uterus. In 2016, the couple welcomed a healthy baby boy to their family. So far, it’s all good news.

The following year, the couple returned to CT Fertility in hopes of a having a second child, which they expected would be the genetic sibling of their first child. To get there, they would use ova from the same anonymous egg donor and, of course, the husband’s sperm. In 2018, another healthy boy was welcomed to their family. However, the family was surprised that their second child looked distinctly different from his brother and father. The baby had darker skin, and different features. The parents underwent DNA testing, and were shocked to learn that their second son was not genetically related to the child’s father, and, not surprisingly, not fully genetically related to his brother.

Most troubling, the couple does not know to whom their child is genetically related, and are concerned as to the whereabouts of the husband’s genetic material. Does another family have a child genetically related to them? Will some unwitting and unintentional sperm donor later seek rights to their second son, his genetic child?

An Uphill Battle of “Valuing a Child”

The couple submitted expert testimony that this outcome could not have happened without the clinic acting negligently and outside the standard of care. Seems obvious, right? But actually, courts often reject the claims by wronged parents in similar circumstances. In the Andrews case, a New York couple went through IVF and had a healthy child, but one not genetically related to both of them as intended. The court refused to award damages, stating that it would not “adopt a rule, the primary effect of which is to encourage, indeed reward, the parents’ disparagement or outright denial of the value of their child’s life.”

I spoke with Professor Dov Fox of the University of San Diego School of Law, and the author of the latest hot book in this area — Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law. Professor Fox explained that he would “recommend that the court recognize a right to recover for wrongfully thwarted offspring preferences, unless public policy concerns would make it illegitimate for courts to remedy these wrongs.”

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Fox believes the CT Fertility case poses a number of difficult issues: (1) intersecting interests in choosing children for genetic affinity, physical resemblance, and racial matching; (2) whether such interests are worthy enough to merit legal vindication and monetary compensation; (3) how to value — in dollar terms — the reproductive injury that any professional negligence gave rise to; and (4) what kinds of policy concerns — emotional harm to the resulting child? public commitments to racial equality? — might void redress for the wrongful defeat of offspring selection.

The damages questions are always perplexing. Here, the plaintiffs are asking for $200,000 in damages. But Professor Fox points out that it is unclear how that number is calculated or what it is supposed to represent. What exactly is that money for? Is that for tangible monetary consequences, or just abstract pain and suffering for not having a child who is the genetic sibling of your other child.

Let’s Be More Like Singapore (At Least On This One Point)

Last year, Singapore’s Supreme Court faced a similar fact pattern. A local couple sought the assistance of a fertility clinic within the country to conceive. Sperm was switched, and the child conceived was not genetically related to the father as planned and promised. The court there, too, struggled with how to think about and compute “damages” when a child was not the same race as intended. The court ultimately focused not on the differing race, but the lack of “genetic affinity.” The parents intended for a child genetically related to them — while genetics can mean everything, or little to nothing, depending on the person, the court determined it was fair to find damages resulting from the negligently caused lack of genetic connection.

I understand an American court’s hesitation to imply that a child being of a different race or other genetic composition than intended reduces the child’s “value.” But Singapore is on to something with the genetic affinity rationale. Can’t we agree that finding damages for the clinic’s negligent actions does not have to reflect the child’s worth? Instead, the court can recognize that genetic connections can be profoundly significant, and thwarting that connection in breach of one’s duty merits an award of damages to those harmed.

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So here we stand now. The Connecticut court has an opportunity to pave a new path forward, and allow justice to be served for these parents and others like them.

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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