Mistakes in ART–What’s the Remedy?

I’ve written on at least two earlier occasions about the consequences of mistakes in ART.   (If you want to go back, the posts are here and here.)  I’m suspect I have also let some of the “mistake” stories go by, too.   But there’ are stories of two incidents  circulating in the British press, and I thought I’d revisit the topic.    

I’ll start where I started before–mistakes are bound to happen in all human endeavors and ART is no exception.  But of course, as ART is more widely used, there will be more mistakes.   (Not necessarily a higher percentage of mistakes, but a constant percentage means a rising number of mistakes as the number of instances of ART rises.)   

It’s useful to me to think about the mistake cases because they can shed light on parentage in ART more generally.    I have, for the moment, many more questions than answers. 

The more prominently featured story concerns a couple who first used ART in 2000.   They went to a clinic and created nine frozen embryos.  They had a child, I gather born after one of these embryos was transferred to the wife.   The remainder of the embryos were frozen. 

They wanted to pursue further ART in 2007.  Only one frozen embryo had survived until then.  When they went to get that one, the clinic informed them it had been “destroyed” inadvertently.   

I want to stop here for a moment and consider the nature of the harm done to them and the remedy that might be appropriate.  It may seem callous to think in terms of remedy, but since there’s no way to undo the harm, surely that’s what we have to do.   Have they been deprived of a child or of something else?   If something else, what?  Is it property?   Beyond property?      

This couple is apparently capable of producing additional eggs and sperm.  Does this matter?   They can still create a child who will be genetically related to both of them.   Thus, their loss is less catastrophic than that suffered in instances where the people involved cannot produce any more genetically related embryos.   

The clinic offered free IVF services–essentially offering to create a replacement embryo.   Is that a complete remedy?   Of course, this line of reasoning would be completely objectionable if you tried to apply it to a case involving the death of a child–at least, I think it would.    But it seems to me that embryos are quite different from children.    

Does it matter that some number of embryos (perhaps as many as seven) had simply not survived the freezing process for the seven years the embryos were stored?   I imagine you know when you freeze a bunch of embryos for seven years that you know some will not survive the process.   If that is so, then essentially you have agreed that you will accept that inevitable loss.   Does this effect the remedy you might receive?   After all, you are not entitled to any recompense for the loss of all the other embryos.       

Now I’ve left out a fact here that could be important, which I’ll add back in.  It turns out that the last embryo was mistakenly transferred to another woman.  Apparently this resulted in a pregnancy.  But when the other woman learned that the embryo transferred was not the one she had intended, she elected to have an abortion.   Is this relevant to considering the damages to the couple that initially created the embryo?   Is their loss greater than it would have been had the embryo simply been destroyed by the clinic?   Why? 

As I say, far more questions than answers, and I didn’t even get to the second case–one involving race, which is often the reason ART mistakes come to light at all.   More for another day.


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