Family Law

Parents Prevail In 'Savior Sibling' IVF Mix-Up Lawsuit

Putting aside the ethical question of conceiving a child specifically designed to save another, count this judgment as a significant win for IVF patients across the world.

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There have been so many sperm and embryo lab mix-up cases recently, it’s hard to keep up. The latest shocking one, this time out of Europe, involves parents whose first child, a son, suffered from a genetic disorder called beta thalassemia. The condition is associated with a shortage of red blood cells and a lack of oxygen to parts of the body. Unsurprisingly, it can have serious complications. One treatment option is a bone marrow transplant, but that procedure requires a matching donor — which can be quite difficult to find.

Savior Sibling Snafu. The parents had planned to have two or three children, at most, and learned that through in vitro fertilization (IVF), they could test their embryos and ensure that their next child was a match for a bone marrow donation to their first child — aka a “savior sibling.” A fertility clinic in a Brussels hospital assured the couple that the clinic could do the appropriate testing on the embryos to make certain their next child was a match. The couple’s IVF process resulted in three healthy embryos. Testing revealed that one was a match to their son, the other two were not. So far, so good.

Unfortunately, by error, the Brussels clinic transferred a nonmatching embryo, instead of the matching embryo. The transfer resulted in twins(!) for the couple — but neither twin was a donor match for their firstborn.

Despite now having reached the maximum family size they had hoped for, the couple then sought treatment from a clinic in Spain to successfully transfer another embryo, in hopes that this one would be a bone marrow match. There, they conceived a child able to help their son. Their fourth child was a match and the oldest was eventually able to receive the hoped-for bone marrow transplant treatment.

The Award. The couple sued the Belgium hospital for the embryo mix-up. Last week, a Dutch judge ruled in the couple’s favor, awarding damages of €27,000 to the mother and €11,000 to the father in damages for “the shock they suffered after learning the twins were not suitable as donors,” as well as the anxiety and risks generated by a new pregnancy. The clinic was also ordered to pay damages to the firstborn child of €5,000 for the delay in his transplant procedure. Further, the court awarded the couple €25,000 to cover “the impoverishment” caused by the fourth child.

Whoa. Totally fascinating. For so many reasons.

First, courts, especially in the United States, have struggled when it comes to finding in favor of wronged fertility patients. There has been a prevailing fear that damages awarded in fertility mix-up cases could be seen as the “damage” or lesser value of the child that the parents conceived (versus the one they intended to conceive).

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For example, in the infamous Xytex Donor 9623 case, a sperm bank was accused of failing to screen a donor appropriately, misrepresenting material information about the donor, and failing to update patients of significant medical information, among other things. The sperm bank argued — successfully on the trial and appellate levels — that the court could not find for the plaintiffs, regardless of any negligence on the sperm bank’s part(!), because it would be for “wrongful birth,” and such claims are disfavored on public policy grounds. This has been a common obstacle. Fortunately for the plaintiffs in the Donor 9623 case, the Georgia Supreme Court partially reversed the lower courts, finding that many of the plaintiffs’ claims were not specifically tied to the existence of their child and therefore should not be dismissed on wrongful birth grounds.

Here, the ruling by the Belgium court did not suggest that the twins had lesser value as persons for not being a match to the first child. Instead, the court focused on the parents’ shock, the risks of an additional pregnancy, and the costs of raising the fourth child. That last one being of particular history-making interest. This is the first case in the country where a judge awarded damages for parents raising a healthy child.

Who Is The Injured Party? Also of special interest is the court’s award of damages to the couple’s first child. In the U.S., children of “doctor-donors” — aka doctors who used their own sperm on their patients without their patients’ knowledge or consent, generally under the guise of using “anonymous” donor sperm — have brought numerous suits against these doctors. But they have been routinely dismissed by the court system on the basis that the child was not a patient of the doctor. Here, the Belgium court acknowledged the foreseeable damages to the patients’ child caused by the clinic’s mistake.

A difference in this case is that the child awarded damages — the child needing a bone marrow transplant — was already alive and indeed injured by the fertility clinic’s negligence. But the child was not the patient of his parents’ doctor. The extension of who can be awarded damages in an embryo mix-up case is significant.

Putting aside the ethical question of conceiving a child specifically designed to save another, I would count this judgment as a significant win for IVF patients across the world. The consequences of transferring the wrong genetic material can be severe, and clinics need to be doing everything in their power to prevent such mistakes. If medical and ethical duties don’t work by themselves, maybe the fear of successful litigation will.

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Ellen 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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