The Wrong Embryo, II

I just sat down to write this entry, inspired by this morning’s Today Show and lo, I found I had already used my title.  Six months ago I wrote about another wrong embryo case, but I guess I’d forgotten.   Just goes to show that, as I said in that earlier post, accidents will happen.  

Anyway, here is the story from this AM:  Carolyn and Sean Savage had used IVF to conceive their third child.  They had left-over embryos which were frozen.   They decided they wanted to try to have a fourth child and so went to have the embryos thawed and transferred. 

A pregnancy resulted.   But it turned out the clinic had used the wrong embryos–embryos that had been prepared and stored for some other couple.   Somehow this came to light quite quickly (though obviously not quickly enough) and so the news of the error arrived along with the news that Carolyn was pregnant.   

Clearly the Savages had a limited range of options at that point, none of which were ideal.   As recounted on this mornings TV show, though, they started out with some legal advice I’m inclined to doubt–they were told that they couldn’t keep the child.

I’m not at all persuaded that would be true.  (They live in Ohio, but I’m not sure what Ohio law is.)  I think the only way a woman can give birth and not be considered a legal parent is if there is an enforceable surrogacy agreement.  Some states permit those and some do not, but even in the state’s that do permit them, you need to start with an actual agreement.   Obviously there was no such agreement here.   So my instinct is to say that the law would have recognized Carolyn Savage as the mother of the child when it was born. 

Guessing aside, this is an interesting problem to think about.  It seems to me the surrogate’s agreement is an indispensible feature of surrogacy.   Absent that agreement, a woman in Carolyn Savage’s position ought to be a mother.  (I’m not reopening the whole surrogacy question at the moment, but you can look back on the blog for discussion about that.  Perhaps she ought to be the mother even if there is an agreement.)    Is there any really good argument that she should not be the mother?   

It’s clear that had she wanted to, Carolyn Savage could have terminated the pregnancy via abortion.   But the Savages chose not to do that.  They elected to continue the pregnancy and they plan to surrender the child to the couple whose embryo was mistakenly transferred.  In other words, now both couples are parties to a surrogacy arrangement.  (It’s really rather an altruistic surrogacy arrangment, for those who are keeping track.  certainly the couple who will receive the child are not paying the Savages.)   

If you think about this sort of mistake, which I assume is bound to happen once in a while, you can see all sorts of ways it could play out.  Both couples could want the resulting child.   Neither couple could want it.   (It’s fortunate that the couple whose embryo was transferred was willing to accept another child at this time.)  Or either one, but not the other, could want it.   Clearly all of this challenges us to consider who are the parents of the child that results from this sort of accident and, equally important, why you give that answer.  

There’s another question lurking here.   At the tail end of the TV clip, there is a suggestion that there might be some sort of litigation.   Surely the Savages have some sort of claim against the clinic that mixed up the embryos.   So, too, would the other family, I think.   But for each of them, what is the measure of damages?   Could you measure Carolyn Savage’s damages by looking to what a surrogate would have earned?  Is that adequate, assuming she would never had agreed to a surrogate?  And the other couple, what did they lose here? The opportunity to experience pregnancy with this child–what’s that worth?    How can we figure it out?   

There’s a last little twist I wanted to note, too.   Carolyn and Sean Savage still have remaining frozen embryos.   But Carolyn Savage can no longer carry the pregnancy.  So they plan to use these remaining embryos with a surrogate.   I cannot help but wonder whether her experience as an unintended surrogate will shape how she approaches the surrogate they have now retained.

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12 responses to “The Wrong Embryo, II

  1. This situation can also be looked at through other legal perspectives which are in fact arguably more in keeping with today’s legal culture.

    In a system that commodifies an embryo so that it belongs to someone, I can’t see how title to the embryo and hence the child could ever pass to Carolyn Savage if implanted by mistake. Presumably, if she does not abort she is merely a bailee of the embryo and hence after delivery must hand the resultant child over to its rightful owners. The measure of damages is still tricky. It could arguably be nothing from the time she chooses not to abort because at that point she chooses actively to become a bailee.

    There is also a perspective, which you Julie seem to emulate, in which genetics are considered wholly irrelevant , so the resultant child ought to be welcomed without hesitation by the Savage’s as much as if it was their genetic child and no damages ought to be payable to them because genetics are irrelevant so they’ve lost nothing by not having their own genetic child. As regards the other couple they can be supplied with any random embryo in place of their genetic embryo and again they’ve lost nothing because genetics are irrelevant. Under this perspective, no damages should be payable at all to either party,.

    • The Savages do not feel that the baby is theirs. They do not wish to raise the child. I wouldn’t force them to raise it. As it happens the couple for whom the embryo was created does want the child, so it all works out this time–though I’m not saying there isn’t trauma and harm done.

      But suppose the Savages did want to keep the child. I can imagine that this is possible. Then what? I just cannot say the baby automatically goes to the people for whom the embryo was created. I think that’s a difficult result to reach in a case where a woman willingly and deliberately agrees to be a surrogate. But where she has made no such agreement? I’m not prepared to call her a bailee.

  2. Even in today’s legal culture a woman is only a mother because she is genetically related or because of intent. The key issue with the implantation of the wrong embryo is can intent be transferred ? Or put another way, is the intent to become a mother considered a general intent and hence it doesn’t matter whether it is to her own or someone else’s embryos. If intent is considered as just general it would seem to me to diminish or entirely reduce any claim a woman might have to compensation for the wrong embryo.

    However, if intent is considered specific Mrs Savage cannot be considered the mother and has a good claim for compensation from the clinic for being robbed of the opportunity to have her intended baby and for compensation by the clinic for being put in the situation where she is an uncontracted surrogate.

    • I think you could make an equally valid statement that went the other way round: A woman who gives birth to a child is a mother unless she has clearly agreed in advance of the pregnancy that she is to be a surrogate. I’m not sure either your rule or my rule will be universally true–I’d bet that different courts will differ. But the general rule that a woman who gives birth is a mother is centuries old and surrogacy is seen as an exception to that rule. I’m sure some courts will confine the exception to cases where it is clear that surrogacy was intended.

      If I were the unnamed couple who will be raising the child, I’d go through the formality of an adoption to make sure I had all my rights nicely established.

  3. Under Ohio law, the child’s parentage will be easily sorted out. What I find interesting is the malpractice side of this case. And not that of the Savages.

    The genetic family may have a very unique cause of action against the facility. Wrongful life is a little used theory of liability which may come into play if they pursue a remedy for having to open their home to an unplanned child. Theoretically, the Clinic may be exposed to the costs to raise the child to age 18.

    • Robert–can you say a little bit about how Ohio law will sort out parentage? I’m curious, and it sounds like you might know.

      Apart from a wrongful life claim, I wonder about two other elements of damage. The woman who will be raising the child was deprived of the chance to be pregnant and give birth. How would one value that? For some women, that’s hugely important, for others perhaps not so much.

      And even if the couple wanted another child, the timing might be wrong for them. Are costs associated with bad timing an element of damages? Pregnancies that occur on their own sometimes come along at inconvenient times. But ART pregnancies usually are planned.

  4. I understand alot of the perspectives here, but there is a somewhat similar case in California where the physician implanted the wrong sperm and did not inform the woman until the child was 10 months old. Once the man found out, litigation ensued, the doctor lost his license, and the child is now split 50/50 between the parties, (and if my memory serves me right) mainly because the woman did raise the child for 10 months and the other couple only had rights to the child due to the male’s genetics.

    I think that this couple is being honorable by not litigating the issue with the other couple.

    Also, we can also look to the case where the woman was implanted with her and her spouse’s own embryo, as well as the embryo of another couple, they were denied all rights to the child as they discovered the mix up immediately at delivery (one child was black and one was white).

    These may not serve as precedence, but I do think that they are notable cases that will provide any court guidance. Just my two cents.

    • I know the first case you are referring to, and in some ways I think that is the worst possible outcome to reach.

      As I recall it, a single woman expected the clinic to use sperm from an anonymous donor, but the clinic instead used the sperm of a married man. He had provided the sperm for the insemination of his wife and never intended to be a donor for anyone else.

      The court concluded that both were parents. It’s unsurprising that she was a parent, really. But the court concluded that since he had not intended to act as a non-parent donor, he too was a parent (by virtue of the genes.)

      Since they are both legal parents and there is no grounds for terminating anyone’s parental rights, they share custody. Imagine–shared custody between two households who are total strangers–even less contact between parents than a one night stand. It’s not that it cannot work–if everyone behaves well, it can. But it must be very odd.

      So does this suggest what to do here? I think it might suggest that if the Savages want to claim parenthood, they should be able to claim parenthood, because they did not intend, at the beginning, to not be parents to the child. They are in the position analogous to that of the unintended sperm donor.

      It’s really very good that the Savages are being so accomodating of the other couple. I think it had the potential to be a terrible mess.

  5. Damage issues are always problematic. The plaintiff asks for two types of damages, economic and non-economic.

    Economic are the out of pocket items you paid or will have to pay because of the negligent act. An economist would have a tough time assigning an objective equation for determining economic damages arising from the loss of the obstetric experience or for the bad timing.

    You can argue non-economic damages for the lost experience of pregnancy and the bad timing. That side of a jury closing is just theater. But, jurors are fickle and you never know what they will do with the information.

    In Ohio, parentage via assisted reproduction is supported. Gamete donation is supported statutorily. Surrogacy is supported via case law. Clearly, the fact that these two families are compliant with the fact pattern will make the case easy for the trial court.

    Essentially, the parties will enter into an agreed judgment where the court will make a series of findings. First, the genetics of the baby will be confirmed. Second, an implied surrogacy agreement will arise from the facts and circumstances of the case. Third, the best interests (here we go again) of all the parties will be served if the child’s custody and parentage is transferred from compliant birth parents to willing genetic parents.

  6. Julie;

    Since you refered to the first Wrong Embryo post, I want to address your questions there about Japan, since you may not get to this response if I post it under that older blog. I am also eager to hear your response to what I wrote under “A Child-Center…” I raised some points that you haven’t addressed and would greatly appreciate your views on these.

    One thing you might not know is that the common wisdom in Japan is that adoption is not practiced there. In my last visit to a Yokohama congress of the World Asscociation of Infant Mental Health to speak about donor insemination on behalf of four DI adults I know there, I met with a family with three adopted children who told me that they keep it secret from everyone else because their society frowns upon adoption. Most Japanese will claim that adoption doesn’t exist there but, of course, it does, but only with great secrecy. The same is true with DI, although the numbers of DI children average around 100 per year, compared to well over 40,000 here in the US. For the most part, these are all kept secret, not only from the public but from the children themselves. The attitude against adoption and ART is culturally-based on their emphasis on ancestral values and explains the comment that “bearing and raising children who are not related to the mother is uncommon and has been discouraged by Japanese medical groups.” It follows that surrogacy, especially gestational, is not practiced there, unless it is also small scale and held secret. IVF is relatively new there as well as a slowly growing feminist movement. As I understand it, IVF is restricted to use by genetic parents only. Paternalism is still the main value in medicine there so doctors have the power to deny the use of IVF for surrogacy. As outsiders, we do have an obligation to question the ethics of other cultures if we can see that there is some kind of injustice involved or harm to others.

  7. Julie you state: “I think it might suggest that if the Savages want to claim parenthood, they should be able to claim parenthood, because they did not intend, at the beginning, to not be parents to the child. They are in the position analogous to that of the unintended sperm donor.”

    Firstly, In think it obvious that the Savages intended to be parents to the embyos they had created and not to any other embryos.

    Secondly, I do not see their situation as analogous in a fundamental respect to the unintended sperm donor. He was undeniably genetically related to the child, the Savages are mere unintended gestational carriers. The unintended sperm donor had contributed exactly what all men contribute to creating a pregnancy – no more, no less – sperm. That being so he quite rightly was judged to be the father.

    I really can’t see how the Savages could under current models be considered parents. They are not genetically related to the child, they had no intent to parent this child and the fact that traditionally women who bore a child were always regarded as mother is neither here nor there, since that traditional model of motherhood only applied before women’s eggs were extracted to be gestated by other women.

    • Here’s a citation and link to WA law. http://apps.leg.wa.gov/rcw/default.aspx?cite=26.26.101 I think if you follow through Section 1 here you’d conclude that under WA law the Carolyn Savage is a parent of the child. The woman who donated the egg is not.

      The law was enacted in 2002, so I think it does qualify as a current model. It is rooted in a historical understanding that a woman who gives birth is a mother. ART challenges that, but ART recieves a mixed reception in law.

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