In Vitro Fertilization or IVF as it is commonly called, is a much sought after procedure by infertile couples. Normally fertilization occurs within the fallopian tube which joins the uterus (womb) to the ovary. In an IVF procedure, the fertilization between a sperm and an egg occurs in a laboratory after eggs and sperm have been collected from the desiring couple. The process involves removing a ripe egg from a woman’s body and combining that egg with sperm in a Petri dish, by a process called Laparoscopy or “aspiration.” If fertilization occurs, the embryo is implanted in the uterus to continue growth. Children that have been conceived this way are often called “test tube babies.”
The world’s first test tube baby was born in 1978. The first live birth of a child conceived in vitro occurred in 1979 in Great Britain after 20 years of research by a British team. Johnson v. Calvert, 5 Cal. 4th 84, 105 (Cal. 1993). The first IVF birth in the United States took place in December, 1981. Since 1978, more than 169 clinics specializing in IVF have been established in the United States alone. IVF is expensive and can be unsuccessful. In a few cases, laboratory mix-ups (misidentified gametes, transfer of wrong embryos) have occurred.
This relatively new procedure has caused a raft of questions as to rights of the various parties and remedies available to them if wrongful acts occur related to the procedure. This article shall outline the basic law that applies and remedies often available should things “go wrong.”
The Legal Framework:
In general, the law does not recognize IVF plaintiffs’ procreative interest. Therefore, IVF plaintiffs cannot recover for procreative injury, no matter how serious the injury is. There are no existing legal theories in tort law that includes the losses attached with this new technology. Similarly, there is no uniform law governing legal theories for aggrieved IVF patients, apart from some state laws for their protection. However, there have been instances where courts have gone beyond the general law and have allowed a claim.
The courts have often attempted to apply traditional theories of contract and tort law to this new technology. Indeed, many inventive legal counsel have advanced theories of recovery based on intentional infliction of emotional distress or even loss of property rights. The record of success is mixed. The most common claim is breach of contract or professional negligence on the part of the provider.
Breach of Contract
Breach of contract claims differ from “emotional distress” and “property loss.” Breach of contract is not a personal injury caused by wrongful actions of another, as torts are. It is breach of an assumed contractual duty. See our article on Contracts. Medical errors are normally considered as tort and not as breach of contract unless a doctor warrants the result of his care as in Itskov v. N.Y. Fertility Inst., Inc., 782 N.Y.S.2d 584, 587 (N.Y. Civ. Ct. 2004), where the doctor breached the surrogate parenting contract.
Failure of Claims for Injury Due to Emotional Distress
In Harnicher v. University of Utah Medical Center 962 P.2d 67, 68 (Utah 1998) an infertile couple, David and Stephanie had chosen a donor who resembled David. The clinic switched donors. The couple had three children who did not resemble David. The Harnichers were distressed at the clinic’s negligence. It was difficult for them to determine the basis on which to file suit. They had not been physically injured. They had no financial losses beyond those they had bargained for. In the absence of a better alternative, they claimed emotional distress and failed in court. Common law rule forbid recovery for negligently inflicted emotional distress without accompanying physical injury. Harnicher at 69-70. Many other IVF plaintiffs made the same claim and lost for the same or similar reasons. Similar was the plight of Cora Creed when her embryos were implanted in another woman in Creed v. United Hosp., 600 N.Y.S.2d 151 (N.Y. App. Div. 2d Dep’t 1993), and also of a Jane Doe when hers were put in a preservative solution possibly infected with Mad Cow disease in Doe v. Irvine Sci. Sales Co., 7 F. Supp. 2d 737 (E.D. Va. 1998). There was no physical injury to which emotional distress could be attached.
Loss of Property Claims Can Succeed
IVF plaintiffs have also alleged loss of property. In Frisina v. Women & Infants Hosp. of R.I., 2002 R.I. Super. LEXIS 73 (R.I. Super. Ct. 2002), three women whose embryos were accidentally lost or destroyed joined as plaintiffs and alleged injury as they were deprived of their property-their embryos. The court permitted the suit to go forward. The Court even allowed emotional distress claims to attach to the loss of “irreplaceable” property considering the unique qualities of IVF. The court in Frisina’s case found that the plaintiffs were seeking to recover for the physical loss of their pre-embryos rather than for the loss of the possibility of achieving pregnancy as claimed by the defendant. The court found merit in the argument raised by plaintiffs that recovery for damages for emotional distress based on the “loss of irreplaceable property,” the loss of their pre-embryos was permissible under the Rhode Island Supreme Court’s holding. Therefore defendant’s motion for summary judgment on the issue of damages for emotional harm due to the loss of irreplaceable property was denied.
Pure pecuniary loss, such as medical expenses and lost wages, is another category of injury. It is similar property-loss claims. Courts have permitted recovery for it in certain IVF cases. In Paretta v. Medical Offices for Human Reproduction, 760 N.Y.S.2d 639 (Sup. Ct. 2003) the doctor knew that the egg donor had the recessive gene for cystic fibrosis, and skipped a routine test to check if the husband was also a carrier. When the child was born with the disease, the Parettas successfully sued for the cost of caring for their baby. The theory of pecuniary loss failed in another case for a couple who did not have a child in the first place.
Physical Harm to Patient
The law does protect IVF plaintiffs against physical injury. If IVF plaintiffs can establish even a minor form of physical injury associated with their doctors’ negligence, they can seek relief. However, the mere act of surgery is not considered sufficient for physical injury. Two plaintiffs brought an action arguing that the IVF procedure itself constituted physical injury. They argued that extracting eggs and implanting embryos were both painful surgeries and that this constitutes compensable physical injuries. The Court denied their claims on the ground that the plaintiffs consented to the “injury” of surgery. Creed v. United Hosp., 600 N.Y.S.2d 151 (N.Y. App. Div. 2d Dep’t 1993). However, if the doctor had made an error in the surgery that caused other physical injury, the action would have survived.
Putting Round Pegs in Square Holes:
As anyone who is familiar with the law of the internet or intellectual property can advise, the law is often slow in catching up with new developments in technology or society and the initial stage of legal reaction to something new is to seek to expand existing legal theories to cover new issues. Here, we have a classic example of the law playing catch-up and the ultimate solution will be enactment of legislation at the state level granting certain rights to individuals and imposing specific duties on providers. State law should be examined by the person interested in determining potential relief and in those states in which the law is moribund, the above common law is the sole source of relief.
Not only is the process expensive and often unsuccessful, but the medications required to be taken can have significant effect on the emotions. Few couples go through the process without some turmoil and when injury or apparent neglect occurs, the reaction can be extremely emotional. It is important before seeking relief to carefully analyze the available remedies practically available in your jurisdiction, calmly consider what is appropriate and obtain good legal and financial advice. As the law evolves, many of the problems described above will be resolved, but American litigation is always a difficult and expensive process and should be carefully evaluated before action is taken. That said, relief may be available for those harmed and the inquiry is almost always worthwhile.