Regulation as a solution?
Some legal scholars call for regulation. [1] Certainly, it would help. But the UK’s reproductive industry is strictly regulated by the Human Fertilisation and Embryology Authority (HFEA), and problems still proliferate.
“In 2014 … the HEFA reported adverse incidents at a frequency of one per every one hundred cycles of treatment, similar to error rates in US facilities.”
Wrongs Without Legal Remedies
In addition to duplicitous doctors using their sperm to inseminate patients, discussed here, errors include losing or destroying genetic material, implanting the wrong embryo, switching embryos, and poor screening of donors. Currently, IVF-born children are generally barred from suing the facility for negligently caused damages related to their birth. Such lawsuits would, if allowed, result in not only compensatory damages, alleviating a life of problems, but could have a deterrence effect on preventing shoddy practices.
Cases of wrong embryo implantation are said to be rare, likely because the parents only discover something is wrong via a color mismatch. With the advent of genetic testing, that is sure to change. Using 23andMe and similar products, children are learning for themselves that the person they thought was their biological father - was someone other than the person they call “Dad.”
In some cases, embryos were implanted in the wrong mother, i.e., switched before pregnancy. One heart-rendering case, memorialized in Rogers v. Fasano, revolved around the return of the biological child to their biological parents when the problem was discovered after birth. But this week, a switched embryo was discovered during pregnancy – in a case involving the same embryologist as in the Fasano situation. The pregnant mother decided to abort the fetus rather than risk becoming too attached to it and undergoing, as in the Fasano case, a potential custody battle.
A Dilemma Requiring the Wisdom of Solomon
These cases are without legal remedy. The biological mother has no right to sound in, at least not before birth. The woman carrying the child – in essence, a non-voluntary surrogate – bears the risks of pregnancy and the likelihood the child will be taken from her if she carries it to term. Solomon would have convened a court – and asked the birth mother if she would prefer killing the child or allowing another woman to have it- we know the answer. In our world, no one wins.
More Orphan Injuries
In other instances, the IVF facility knowingly mis-markets a sperm donor’s “credentials” as, let’s say, being healthy and intelligent when instead he has a history of serious, hereditable illness. “Wrongful birth,” the mother’s claim, is generally allowed, providing limited recovery. Previously, these claims were often brought when the mother suffered rubella during pregnancy, and the physician failed to advise her of the birth risks or need for genetic testing. Successful claims were asserted where an unwanted child was born or born with horrific medical problems.
But in the IVF cases, the resultant child is denied recovery; the child’s claim – now called “wrongful Life” is typically rejected. Better to be born with a bleak future, say the courts, than not to be born at all. That may well be the case, but the courts could make that future more bearable and deter future misconduct by awarding compensatory and punitive high damages.
Professor Dov Fox [2] calls for expanding the legal framework for civil claims, invoking a newly conceived tort of “reproductive negligence.” I have suggested using existing torts in new ways to address the issues. [3] Regulation and expanding liability would undoubtedly result in deterrence and better self-regulation by these facilities.
What happens if a defendant goofs – but the damages are questionable?
Until recently, cases revolved around egregious actions by IVF labs or physicians and sorely distressing outcomes that went without legal deterrence for wrongdoing. And so, it continued with sad but not necessarily egregious outcomes, still involving wrongful conduct.
Consider Jessica Cramblett.
Jessica Cramblett, a white lesbian mother, delivered a bi-racial child after using donated sperm. She sought damages for breach of warranty and wrongful birth – claiming difficulties in raising her child. In Cramblett’s case, the defendant failed to provide sperm of white Donor 380, Ms. Cramblatt’s choice; instead, through a technical error, supplying sperm of Black Donor 330. That kind of mistake is the stuff of typical negligence (or malpractice, in the case of professionals). But negligence suits require not just carelessness but that the claimant suffered provable damages, which the courts found was absent. Her claims were dismissed at the state, and federal levels.
The Cramblett incident transpired in 2011. With no regulations, supervised record-keeping, or lawsuits permitting significant damages, perhaps it isn’t surprising that similar conduct continued.
Heather Wilhelm-Routenberg, had been sexually traumatized in her younger days and consequently fears men. She and her partner went to the CNY fertility clinic seeking a female embryo. Instead of the female child they sought and contracted for, they got a boy. A healthy boy, to be sure, but a boy, nonetheless. Heather claims significant emotional problems, depression, suicidal ideation, and emotional distancing from the child. She and her partner sued.
It seems clear the facility goofed. Because of Heather’s history, she undoubtedly suffered. But millions of infertile women would be thrilled to have any healthy child. Are Heather’s damages the only ones the law cares about? To me, the most injured person in this saga is the child, deprived of maternal love and bonding for months following his birth and denied legal redress.
Commodification of Children
Taken to an extreme, the “used car” approach regarding enforcing warranties when it comes to ordering or specifying children is chilling.
Consider the Japanese case, where a woman recently sued a donor for $2.86 million for the emotional distress on learning that he was not who he said he was. She wanted a Japanese graduate from Kyoto University. It turns out he was Chinese and didn’t go to the school. When she found this out, she gave the child up for adoption – and sued.
The Japanese fertility system forces women to enlist donors privately. A robust and well-regulated fertility system would right the problem. But in its absence, should society condone giving the child up for adoption?
“The child’s rejection because the child did not represent what was ‘ordered’ highlights that the child was treated as a commodity.”
Perhaps the ultimate example of consumerism in the “child-selection” business is the Belgian case involving parents who specified a child with a particular genetic makeup to use the child as a savior-sibling (using the baby’s bone marrow to cure an illness of their already-existing child – I’ve written previously about those ethical concerns). Instead, they got a healthy child. Worse still, at least to the parents, the embryo twinned. So, they got two healthy children. They then went on to have another child - which proved to be an eligible savior-sibling. The court awarded the couple more than $40,000 for their “shock and impoverishment” (emotional distress), ruling that the couple “wanted two or three children within their family project, but under no circumstances, four.”
All in the Family
Sometimes IVF facilities are retained to facilitate sperm-egg fertilization of the biological parents. Gamete donors would not be involved. But, when fertility facilities err, parents, expecting joint biological progeny, discover that a sperm donor has been used, and the child is only biologically related to the mother.
This type of mix-up was discovered in a recent Ohio case. The parents of an adult daughter who used an at-home DNA test sued the clinic where the procedure occurred, claiming medical malpractice, battery, lack of informed consent, multiple instances of negligence, the failed safeguarding of genetic material, and more.
“Learning that your entire reality isn't what you believed it to be is hard to explain; it's sort of waking up in somebody else's life”
Mike Harvey [the adoptive father]
I
It’s not clear how the error happened, other than determining that the biological father was another client of the facility at the same time. Damages in the case could relate to the innate “need” to create a lineage, something recognized by the Singapore courts creating a new cause of action, the loss of genetic affinity.
But is this where we want the law to go? Wouldn’t it be good for these parents, who really wanted children, to be grateful for receiving a healthy child? Wouldn’t it be even better if the fertility industry was regulated (or self-policed), so these easily avoidable problems, which probably existed in significant numbers for a long time and went unnoticed, didn’t happen in the first place? And wouldn’t it be best to allow the child to sue if they can prove real hardship – which might carry the additional benefit of deterrence?
[1] Naomi Cahn, Professor University of Virginia, School of Law Sonia Suter, Georgetown University.
[2] Professor of Law and Director for Center for Health Law Policy & Bioethics University of California, San Diego
[3] Barbara Pfeffer Billauer The Sperminator as a Public Nuisance: Redressing Wrongful Life Claims in New Ways (Aka New Tricks for Old Torts),
