Here’s a hypothetical (loosely based on true events) for you:
Pat and Cameron are struggling to start a family. They have gone through two grueling years of fertility treatments at Hope Clinic. Their insurance does not cover the treatments, so the couple has spent $22,000 on medicine, doctor visits, and procedures. Their first attempt at in-vitro fertilization recently failed, but they paid a monthly fee to store the remaining viable embryos in Hope’s on-site freezer. Just as Pat and Cameron were preparing to go forward with the frozen embryos, the freezer failed and all of the eggs and embryos were lost. Pat and Cameron don’t have the money or the emotional wherewithal to start a new round of IVF. They are deeply depressed and their marriage is on the rocks. They feel like their future has been ripped away.
Put your 1L hat on with me and consider: what legal recourse exists for Pat and Cameron? Just off the cuff, I bet you’re thinking about breach of contract, malpractice, and negligent infliction of emotional distress. Perhaps a products liability claim against the manufacturer of the freezer? A negligent hiring claim against the clinic for hiring the substance abuser who left the freezer door open? Destruction of personal property?
The issue with all of the established contract and tort avenues, of course, is that the actual likelihood of recovering any significant damages is extremely low. There is no “physical injury” in the traditional sense. There were probably a million and a half disclaimers signed. Not to mention the fact that no doctor in the world would guarantee that a pregnancy would result from any potential procedure performed using the frozen embryos. It is a tragic situation, but one for which the law just does not seem to provide an adequate remedy.
This is why there is a growing argument that it’s time for a new tort. As Professor Dov Fox at the University of San Diego School of Law explains in his article “Reproductive Negligence,”
Our legal system does not recognize a conception of injury that accommodates the disruption of reproductive plans apart from any unwanted touching, broken agreement, or damaged belongings.… Reproductive negligence inflicts a distinct and substantial injury, however, that goes beyond any bodily intrusion or emotional distress. The harm is being robbed of the ability to determine the conditions under which to procreate.
Professor Fox also examines reproductive negligence in unwanted pregnancy situations (such as ineffective birth control or a vasectomy that didn’t take) or when a hospital “confounds efforts to have or avoid a child born with particular traits.” The latter type of claim includes instances when a child is born with a disability despite genetic screening, or when the wrong embryos, eggs, or sperm are used. Fox proposes a new cause of action measuring such injuries “as a function of their practical consequences for victims’ lives and the probability that wrongdoing was responsible for having caused those harms.”
Social and technological advances have always shaped the introduction of new laws and remedies. Given the growing prevalence of assisted reproductive technology, perhaps it is time to take a closer look at how to best compensate the victims of this particular class of civil wrongs.