Researchers
offer perspective on legal, ethical implications of lost eggs and embryos
Three medical and legal scholars
discussed the implications of one couple's wrongful death suit seeking
compensation for the March 2018 loss at a fertility center of more than 4,000
frozen eggs and embryos.
On March 3, 2018, a liquid nitrogen
storage tank at the University Hospitals Fertility Center in Cleveland failed.
Dr. Eli Adashi, a professor of medical science at Brown University’s Warren
Alpert Medical School, characterized the event as a “tragic accident” in which
950 patients lost more than 4,000 frozen eggs and embryos.
However, one couple’s wrongful death
lawsuit following the incident, which seeks to establish that embryos should be
treated as “persons” under the law, could have “a chain of profound
implications for other families,” Adashi says.
In an “Ideas and Opinions” article published on Nov.
20 in Annals of Internal Medicine, Adashi and co-authors I. Glenn Cohen, a
professor of law at Harvard University, and Dov Fox, a professor of law policy
and bioethics at the University of San Diego, wrote about the potential
implications should the Ohio court hearing the case rule in favor of the
couple. They argue that a ruling in favor 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 wrote.
The plaintiffs in the case, Wendy
and Rick Penniman, are challenging a legal precedent in Ohio establishing that
“a fetus that is not yet viable is not a ‘person’ under its wrongful death
law,” the authors wrote. The challenge is based on “the grounds that the ‘life
of a person begins at the moment of conception,’” the article notes.
A ruling that embryos are “persons”
could be used as grounds to limit abortion rights, the authors say, 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 said. “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.”
Legal limitations
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, the authors wrote.
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 authors wrote.
The last strategy, loss of property
and medical costs, doesn’t fully capture the painful disruption of
“family-building plans,” Adashi said. 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 added. “At this point, there’s no clarity in the courts as to how to deal
with cases like this.”
Revising regulations
Accidents happen, but more needs to
be done to limit and track them, Adashi said.
“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?”
Professional societies in the
fertility field are evaluating the root cause of the incident and are working
on new recommendations and guidelines, Adashi said, in an effort to avoid
similar situations in the future.
The authors note that currently
there are few federal regulations pertaining to assisted reproduction
technologies and there is no system for tracking reproductive errors in the
U.S.
Because agents from the U.S. Food and Drug Administration (FDA) already
visit IVF labs to screen donated human tissues for communicable diseases,
Adashi says the FDA would be the most relevant agency to assume responsibility
for the liquid nitrogen freezers involved in assisted reproduction clinics and
track accidents involving eggs and embryos.
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