Additional legal concerns with IVF
Reproduction negligence cases include a large range of errors and injuries—not just embryo mix-ups. Courts have struggled with when it is appropriate to allow damages, even when there have been clear injuries. For the most part courts have been reluctant to find liability in many areas of new IVF technology.12 One problem in determining how to assess damages is determining how incidental benefits should be used to offset some or all of the damages. For example, how should the joy of having a child offset the costs of raising the child?
There are more than a dozen kinds of current and likely future claims arising from problems with ART. It is tempting to conclude, “Oh, what a tangled legal web we weave when first we practice to artificially conceive.” There are various groupings of such claims, with several examples of cases presented in this article. It is not possible to consider those in detail in this article. As a general proposition, however, “our legal system treats wrongfully disrupted plans concerning reproduction like one of those life adversities that people are expected to abide without remedy.”24
This is not to say, however, that there is no compensation for IVF-related injuries. Applebaum and colleagues found more than 100 cases in the 35 years covered by the study (1984-2020).8 However, only 50 of those cases fit the criteria for inclusion in their data. The successful cases for the plaintiffs involved medical or surgical error, while it appeared that various forms of wrongful life or birth were much less successful. It would be a mistake to conclude from these data that there are not, and will not be, meaningful risks of liability in the areas of IVF and ART more generally.
First, claims that fit with existing legal doctrine are producing liability. About half of the claims (25 over the 34 years) examined by Applebaum et al resulted in liability. Admittedly, that number was small because ART use was increasing. Where the claims fit well-recognized legal forms of damages and forms of action (primarily negligence), the liability could be substantial. A remarkable example of this is the case of Wuth v Lab. Corp (see “Liability for genetic testing errors”),25 which was the largest verdict ($50 million) in the Applebaum and colleagues’ study.8 The large verdict was due to the failure of the testing company and a medical center to properly perform and assess a genetic test, which resulted in the birth of a child with an unbalanced chromosome translocation.8,25 The child’s serious disabilities would require a great deal of expensive care. Although the jury held the testing laboratory and medical center liable, they did not find liability against the physician.25 Ultimately, this case would be considered a failure of genetic testing rather than an IVF case.
Cross country embryo mix-up cases
More than 2 couples
In a second case from California, a couples’ son was born to another couple in New York—along with another boy from a third couple. The woman in New York thought she had carried biological twins but genetic testing confirmed the twins were not related to the couple or to each other (the second couple filed a separate medical malpractice and negligence lawsuit in New York). All 3 couples had sought care at the same IVF clinic. The babies were eventually returned to their biological parents.1
Different races
In a New York case, a Korean couple had twin White boys after consenting to a single embryo transfer. Meanwhile a couple in Los Angeles who went to the same in vitro fertilization clinic gave birth to a child that did not match their appearance. Both couples had undergone embryo transfers on the same day. The court arranged for the Korean couple to surrender their twins to their biological parents when they were 6 months of age in exchange for their biological child.2
References
1. Couple claims clinic implanted their embryo in wrong woman. Associated Press. July 10, 2019. https://apnews.com/article/de32d537c6e34808b28834c23f00e272. Accessed January 6, 2022.
2. In the matter of accusation against Steven L. Katz. Case no. 03-20001-122617.OAH no. N2004080093. Sacramento, CA. Medical Board of California Department of Consumer Affairs 2005.
Future challenges
The future is likely to bring substantially expanded IVF/ART liability for several reasons. ART is becoming more common. Although courts have struggled with how to apply existing liability rules to the new technologies and related novel legal claims, the absence of established legal principles into which IVF injuries fit will not last forever. The legal system eventually finds ways of adjusting old rules or adopting new ones to cover injuries from new technology.
Although IVF injuries that most people feel deserve compensation currently are not cognizable in law, that will undoubtedly change. Either the courts will find new ways of assessing ART claims, or state legislatures and Congress will step in with legislation. To date, Congress has been relatively “hands off” on the ART processes, with the Fertility Clinic Success Rate and Certification Act of 1992 being a notable exception.24 This law requires ART programs to report success rates and directs the Centers for Disease Control and Prevention (CDC) to publish reported success rates and laboratory incidents. It also establishes a model state laboratory certification program.24 The CDC has an outline of the work under the statute,26 as well as state-specific data regarding ART27 and lists of publications in key areas.28 In addition there are various state laws related to recordkeeping, donor qualifications, licensing, and family law issues.29 Ultimately, physicians, scientists, and legal professionals can perform a valuable role in helping to fashion IVF liability principles that are workable and reasonable, that will not interfere with the progress of medicine, and that will ensure that those injured through carelessness or bad medicine receive compensation. ●
Liability for genetic testing errors
Although not technically an in vitro fertilization (IVF) case, Wuth v Lab. Corp. involved an infant born through IVF with a translocation defect chromosome 2 (ie, deleted material) and extra chromatin on 9. The father’s family history included birth defects, including a female cousin with profound developmental disabilities, seizures, and antisocial behavior. He had undergone genetic testing that revealed an asymptomatic balanced, 2;9 translocation. As part of the IVF process, the couple had a genetic consultation and were told there was a 50% chance that the fetus would have an unbalanced 2;9 translocation given the father’s family history and that chorionic villus sampling or amniocentesis could detect this in the fetus.1
Amniocentesis had been performed, with the specimen sent to Lab. Corp. The result was “normal male karyotype.” However, when the baby was born, it was immediately apparent that he had severe physical defects and subsequently cognitive defects. Genetic testing of the child revealed an unbalanced 2;9 translocation. The couple filed a suit for wrongful birth and wrongful life, which went to a jury. The child was awarded $25 million and the parents/family were awarded another $25 million in general damages. The verdict reflected errors in genetic (laboratory) testing.
Reference
1. Wuth v Lab. Corp. of Am., 189 Wash. App. 660, 359 P.3d 841 (2015).