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Kate Plants sits at the memorial bench placed “in memory of the unborn” at the Woodvale Cemetery in Middleburg Heights, Ohio on July 5, 2018. The bench is also in memory of the five embryos she lost to the “catastrophic failure” of a cryotank at the Unive
Kate Plants sits at the memorial bench at the Woodvale Cemetery in Middleburg Heights, Ohio, in summer 2018. Plants lost five embryos to the “catastrophic failure” of a fertility clinic’s cryotank.
Carolyn Van Houten/The Washington Post via Getty Images

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The legal limbo of lost embryos

More than once, the freezer tanks that secure families’ hopes have failed. Courts may fail these families too.

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Last summer, a group of cancer survivors and others struggling to have children held a memorial service for their “hopes and dreams lost.” That’s the message they had engraved on a bench in the Ohio cemetery where these would-be-parents-who-won’t mourned.

More than 4,000 of their frozen embryos and eggs were destroyed when a high-capacity freezer tank failed at University Hospitals Fertility Center in Cleveland one Saturday in early March 2018. Another thousand were lost the same weekend, after a similar malfunction at an unrelated clinic across the country, Pacific Fertility Center in San Francisco.

Some of those affected had made appointments to try to initiate pregnancies the very next week. All had undergone painful procedures and paid, in some cases, thousands of dollars to keep their materials suspended in liquid nitrogen at a constant −196°C. But that weekend in March, tank temperatures began rising, and by the time the Ohio lab technicians returned for their next shift, everything inside had thawed beyond rescue or repair. It’s not clear why remote alarms were turned off; investigations are ongoing. So far, only coordinated cyberattacks have been ruled out.

Similar steel tanks are used by almost 500 fertility clinics nationwide to store millions of reproductive tissues, including eggs, embryos, and sperm. Developed in the 1960s to store livestock semen for breeding, the cryopreservation containers aren’t regulated any better than kitchen appliances or farm tools. In lawsuits, some blame clinic staff for neglecting to refill the nitrogen chambers in these “ever-dependable vessels,” and clinics for failing to adopt more reliable monitoring systems that measure nitrogen levels with a super-sensitive scale that identifies signs of dangerous warming much earlier than the thermometer-based sensors that can only warn hours before it’s too late.

National media have referred to the fertility clinic malfunctions as “unprecedented.” In other fields of health care, states mandate the reporting of what are known as “never events,” such as surgery on the wrong patient or body part. But there’s no public or private system for tracking reproductive mishaps in the United States. So the incidence of large- or even small-scale breakdowns is unknown.

But the recent freezer failures certainly weren’t the first: In October 2005, a mechanical problem with storage tanks at the University of Florida Health Center destroyed sperm that 60 patients had saved before undergoing chemotherapy or deploying overseas. An April 2012 breakdown affected 250 patients at Northwestern Memorial Hospital who had also put their sperm samples on ice. Many of those patients sued; none have won.

Freezer failures may be a first-world problem, but they’re not innocent lapses or harmless errors. Even if biological kids weren’t a sure thing, most fertility patients had a real chance that the malfunctions erased. In every other area of medicine, that loss of chance is usually enough to justify proportional recovery for whatever potential loss or causal contribution can be traced to a health professional’s misconduct.

That approach is the norm when malpractice reduces a patient’s odds of recovery or survival, even if he (or his estate) can’t prove the exact chances he lost, or that the wrongdoing caused things to turn out worse. When it comes to losing a frozen embryo, we can’t know details about what a possible child would have been like; there aren’t would-be individuals waiting in the wings, no cosmic orphanage. But basic affinities of parenthood aren’t hopelessly speculative. It’s a safe bet that lost chances to reproduce mean lost caregiving and affection in infancy; play and guidance during toddler years; interest-shaping and shared undertakings over adolescence.

But however egregious the transgression or profound the suffering, no statute or doctrine says these injuries matter, legally speaking. So judges accept reproductive health care failures as part of modern life, beyond their power to address. As with a spontaneous miscarriage or tough roll of the genetic dice, victims are said to assume the risk and forced to move on. The Supreme Court of Tennessee noted in 2015 that the law does not recognize “disruption of family planning either as an independent cause of action or element of damages.” Even federal courts that have excoriated egg vendors or sperm banks as “[r]eckless, reprehensible, and repugnant” still let them off the hook, resigned that “[a]dvances in science have — as they always do — outstripped advances in law and policy.”

You’d think that recourse for reproductive losses would be easier to come by. Part of the challenge is the law has a hard time keeping up with evolving reproductive technologies. Medical malpractice law holds health care professionals liable for falling short of the relevant standard of care. But the norms have long been tied to professional customs under similar circumstances. Under this framework, health care providers aren’t liable for errors, however risky or unjustified, so long as they acted within that discipline’s or specialty’s standard operating procedures. Some states let doctors and nurses off the hook even if a “respectable minority” has adopted similar practices.

The modern American trend is to reject this approach. An increasing number of states acknowledge that “customary medical practice” constitutes unreasonable care when it fails “to keep pace with developments and advances in medical science.” The better approach that’s gaining favor today looks to the advances that patients have good reason to count on.

And yet courtroom claims in fertility cases are a long shot even when it’s clear that specialists did something wrong. Plaintiffs in the recent freezer failures have brought claims for everything from breach of warranty and destruction of property to medical malpractice and even wrongful death. The wrongful death suits have been dismissed: Calling embryos “persons,” even for the specific purpose of recovering damages for lost embryos, risks bolstering the cause of those who would restrict not just abortion but also practices like in vitro fertilization and stem cell research that foreseeably damage embryos.

The other class-action lawsuits are still pending in both Ohio and California. But in the past, courts have expressed skepticism about aggregate settlements for similar mass-destruction cases, viewing the resulting harms too diverse to certify plaintiffs as a common “class.” Since freezing their samples, some plaintiffs may have grown too old to reproduce, while others may have gotten divorced, or adopted instead.

Some hurdles to recourse stem from the contract terms that patients agree to. Most fertility patients sign off on standard clauses that shield clinics from liability for any reason, even negligence. That standard practice dates back at least as far as 1995, when the New York Times noted that many patients “are required to sign waivers acknowledging that embryos often do not survive, generally because they get stuck in a petri dish, dry up, degenerate or are destroyed in lab accidents.”

Plaintiffs face other stumbling blocks too. Some judges, wary of fraud, say that future plans are easy to invent and hard to prove. Others are content that patients could still adopt, or that they’re no more childless than before their reproductive plans went awry.

Consider the long odds of reproduction. People who pursue treatment for their infertility were never assured a baby in the first place; their chances were iffy, anyway, varying further depending on their age and health. When everything goes as planned, the success rate for most female patients under 33 — which means going home with a baby — still hovers between 30 and 40 percent.

And even if what they lost is a meaningful chance of having children, these patients can’t point to any physical or financial harm to their bodies. They can’t claim any property damage because courts have ruled that eggs and embryos aren’t property.

Nor do shattered dreams of parenthood inflict any bodily intrusion, at least not one that patients didn’t previously consent to. In an earlier case, a clinic stored a couple’s three embryos using a solution that had been infected with a “fatal neurological disorder” that’s “the human equivalent of ... ‘Mad Cow Disease.’” The manufacturer had previously sent the clinic a notice advising customers to “immediately discontinue its use.” The clinic used the solution anyway, exposing everything it touched. But the court dismissed couple’s claims, explaining that “the loss of their embryos” resulted in “neither personal nor property injuries” that “would entitle them to relief.” According to the court, the fertility procedure was an elective process that the couple chose to undergo. The court tossed the suit.

Just because reproductive injuries aren’t concrete or precise doesn’t justify refusing legal remedies outright. Patients exhaust savings, endure prying inquiries, and undertake risky treatments. These efforts testify to the sincerity and significance of valuable interests in forming families. Few undertakings over the course of a lifetime so shape who we are, how we spend our days, and how we want to be remembered. That’s what affected patients described after the Cleveland and San Francisco incidents.

When Megan and Jonathan Bauer’s embryos were destroyed in the San Francisco malfunction, what they lost wasn’t valuable property or a medical procedure but their “dreams of having children together.”

“I wanted nothing more than to be a mom,” said Katelynn Gurbach, who with her boyfriend stored both her eggs and their embryos at the Cleveland clinic before she underwent the lifesaving therapy for ovarian cancer that would leave her sterile. With the tank breakdown, “[t]he unthinkable, the unimaginable, the unbelievable has happened. My worst fears and deepest nightmares made a reality,” she wrote on Facebook.

Lost embryos and eggs illuminate people’s interests against being wrongfully deprived chances for biological parenthood. We’re used to blaming randomness or cosmic injustice when we don’t get the child we want. But cutting-edge interventions promise to deliver us from the vagaries of nature. And health care professionals owe fertility patients a duty to care for these interests in procreation. Sometimes things don’t work out — but that’s no reason to disregard when bad behavior seriously impairs people’s reproductive lives.

Dov Fox is a professor of law at the University of San Diego, where he directs the Center for Health Law Policy and Bioethics. His most recent book is Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law.

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