Serious consequences for clinics if their lawsuit succeeds
On March 3 a liquid nitrogen storage tank at the University Hospitals Fertility Center in Cleveland failed. More than 950 patients lost over 4,000 frozen eggs and embryos. The hospital attributed the tragic incident to “human error”.
More than 70 aggrieved patients have brought over 40 lawsuits against University Hospitals of Cleveland, although most of these claims have been consolidated into a single case. But one couple, Wendy and Rick Penniman, has attempted to sue on the basis of “wrongful death”. Their lawsuit seeks to establish that embryos should be treated as legal persons and that the life of a person begins at conception.
The “chain of profound implications for other families” dismays three bioethicists and lawyers writing in Annals of Internal Medicine, Eli Adashi, of Brown University; I. Glenn Cohen, of Harvard; and Dov Fox, of the University of San Diego. They believe that a ruling in favour of the plaintiffs could lead to limits on abortion, stem cell research and in vitro fertilization (IVF).
“It would be a sad irony if a legal claim aimed at protecting the rights of those who lost their ability to reproduce had the effect of limiting the reproductive rights of countless others,” the authors write.
A ruling that embryos are persons could be used as grounds to limit abortion rights, the authors point out, as well as to potentially restrict research on embryonic stem cells. There could be implications for the future of IVF as well.
“IVF would be significantly compromised,” Adashi says. “If a clinician were to freeze embryos, and some do not survive the process, how would that be dealt with? Would that be manslaughter? One needs to view this suit in that context. The implications are of national interest. They go beyond the pro-life / pro-choice debate and reach into the very conduct of IVF and other fertility promotion techniques.”
The authors also discuss the limitations of conventional legal strategies tried in similar cases, including breach of contract, medical malpractice, negligent infliction of emotional distress, and loss of property.
Many fertility clinics require patients to sign waivers that explicitly excuse liability for storage failures due to negligence, limiting breach of contract suits. Medical malpractice also doesn't apply in a case such as this, because the egg-harvesting procedures were performed properly. And in Ohio, negligent infliction of emotional distress requires the plaintiffs to be “bystanders” to a physical threat to another person; in this case, they did not witness the tank failure.
The last strategy, loss of property and medical costs, doesn't fully capture the painful disruption of “family-building plans,” Adashi says. However, these are the legal grounds the other 70 other patients affected by the accident are pursing in their class-action lawsuit.
The legal system hasn't established appropriate venues for seeking damages for the destruction of eggs or embryos, he adds. “At this point, there's no clarity in the courts as to how to deal with cases like this.”
Accidents happen, but more needs to be done to limit and track them, Adashi says. “It was a wake-up call for a lot of people in the field,” he said. “How do we deal with something like this? How do we prevent something like this? Who should be in charge?”
This is not the first time that embryos, eggs and sperm have been unintentionally discarded, destroyed, or otherwise harmed in the US. But there is no public or private system for tracking incidents like this, so “the incidence of professional lapses in matters of procreation in this country is unknown”.
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