What’s An Embryo Worth? The Problem of Valuation

There’s a new case I’d file under “ART mistakes” that is worth a little thought.   According to this news story, Alex Waterspiel and Melanie Waters recently filed a lawsuit against Santa Monica Fertility–a clinic run by Dr. John Jain.   clinic.   (The plaintiffs are represented by Andrew Vorzimer.  He’s the man behind The Spin Doctor blog and is involved in the prosecutions arising out of the baby-selling ring that has been much discussed.)   The clinic created embryos from eggs and sperm provided by the couple in 2008.  Some were transferred several years ago and the couple had a son.  Three additional embryos created at that time were frozen for future use.

The couple returned to the clinic in January, 2011, hoping to have another child using those frozen embryos.   The clinic couldn’t locate them.   Assuming they’ve looked long and hard (and at this point I bet they have) there are two possibilities:  Either the embryos were mistakenly destroyed or they were used for IVF for someone else.   If the latter, then again, there are two possibilities:  Either the embryo transfer was unsuccessful (in which case we are effectively back with the embryos being destroyed) or it was successful (in which case a child was born.)

If the clinic cannot find the embryos, it’s pretty clear they are in the wrong.  But what is the correct measure of damages?  What remedy is appropriate?

The question of remedy is always a tricky one in legal cases that aren’t about money.   If I ask you to hold $10,000 and you lose it, then it’s pretty clear what the damages are–$10,000.   But what if I ask you to hold a family heirloom?   Or  a ragged old T-shirt of immense sentimental a value?  Or, as was the case here, a frozen embryo?   How much money do you have to pay me to make it right?

Because these questions do come up in law a lot, over time there gets to be sort of a schedule of prices.  It’s sort of ghastly but lawyers in a given community probably have an idea of what the loss of a toe or an hand or an eye is worth.   But I’m not sure we’re there with regard to the ART mistakes that arise.  (And relatedly, there’s this from the NYT on the appropriate compensation for a still-birth–that may be worth a blog post of its own.

How do we start to place a value on what was lost here?  One thing I want to know for sure–can they produce more?  If they can (and since they are in their mid-30s that’s possible) then surely it diminishes the harm.  The clinic can essentially generate replacement embryos.  (I’m not saying this excuses the loss, by the way.)

But Vorzimer makes it clear that there’s a whole other dimension to the claim.  If you  knew the embryos were destroyed, then you could pay some compensation, generate replacements and be done with it.   But what if they were used for someone else?   You still need the replacement embryos, but you’ve also got the question of how to think about the child that’s out there.

And this, I gather, is the crux of the case.   Because there is no sign of broken glass, it seems unlikely that the embryos were inadvertently destroyed.   I suppose they could have been deliberately (but wrongly) destroyed, but there’s no record of that.  So perhaps they really were used for someone else.

So here is where it gets hard.

This is not about the money,” Vorzimer said. “This is about finding the whereabouts of those embryos.”

Ultimately, Vorzimer said the only solution may be to have every child born via in vitro fertilization treatments at the clinic after 2008 take a DNA test.

It is true that you could learn something by testing DNA from all children born from treatment after 2008.   If none of them match, then you could conclude that the embryos were destroyed.  But what if a child did match?  Then what?   Does the child get reassigned to the plaintiffs here?  (You know my answer to that, right?)   Do the plaintiffs get an extra measure of damages?   For what, exactly?   And do the parents of the children born post-2008 have to agree to have their children’s DNA tested?   Would a court order that?

I understand the plaintiffs’ desire to know what happened, but I’m not persuaded they get to do this.   I’d rather award damages that take account of the uncertainty.

I’m going to watch this case for sure–and I hope Spin Doctor will keep us apprised.

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8 responses to “What’s An Embryo Worth? The Problem of Valuation

  1. This does raise interesting questions. I have a genetic condition which my daughter, conceived via IVF, inherited. If my remaining embryos went missing and there were a risk that they had been implanted in another woman, it would be in that family’s interests to know because of the risk of allowing their child to live with an unidentified and untreated congenital condition. If I were a parent who had potentially conceived with someone else’s embryo, I would want to know. I would want to be given the opportunity to know. I would want to be kept informed about the whole debacle.

    • Smart thinking. My point is that you and thousands of other women like you are vulnerable to having your embryo’s implanted in other women either deliberately or mistakenly. You and others like you are also vulnerable to having your eggs mistakenly or deliberately sold to other patients. You don’t know for sure how many eggs they retrieved from your body; Doctors might tell you they got 4 when they really retrieved 8. Knowing that you are fertile your eggs suddenly have a market value. The clinic can market your eggs to prospective buyers as if they’d come from an egg donor, only the clinic pays nothing for them so they will make 100% profit on the sale. What incentive do they have not to sell your eggs when donor anonymity laws make it absolutely impossible for them to ever be caught? They have your full medical history and physical appearance in your medical chart, they could easily make a phony anonymous donor profile sheet for you if they thought you had highly marketable physical attributes. Or they could fill their profile book with phony profiles of entirely fabricated donors and simply use whatever eggs happened to be freshly harvested from their patients without regard to the physical attributes matching the info on the profile sheets. What will the women do if the child they give birth to ends up with brown instead of blue eyes or short instead of tall? Nothing. As long as the child is the right race nobody will investigate and if they do the clinic will claim that the donors are anonymous and there is nothing to be done about it. You don’t know for sure how many embryos they made using your eggs; they could get 7, tell you 5, and sell the other 2 for 10K a piece. If you think its far fetched Google “UC Irvine Fertility Scandal” Hundreds of children were born to the wrong people because doctors misappropriated sperm and eggs and embryos from fertile patients and sold those materials to their infertile and sterile patients that thought they were getting donated genetic material. Proof that a baby is genetically related to the woman who gives birth should be mandatory and if tests prove the child is not related to the woman that delivers every patient and donor from the clinic she went to ought to be tested until the genetic parents can be located. Everyone can decide what they are going to do after the clinic is shut down. I think its wrong that Doctors take advantage of their patients and patients children using anonymity to their advantage I think patients deserve more protection.

    • That’s an excellent point. Does it suggest that families be contacted and be given the choice to test or not? Your comment suggests another way of looking at this–there are other potential injured parties out there–other parents who may not have gotten the embryos they expected. But presumably they get to decide if they want to test or not.

      Of course, it does seem to me that it is possible that the missing embryos were just accidentally destroyed, in which case no one else is injured–except to the extent that’ve experienced anxiety about all this?

      • Sure its absolutely possible that the embryos were destroyed inadvertently and then you have that claim you were talking about which is “hey I was gonna use that and now I can’t and that was the last of my good stuff!” Or maybe it was not the last of their good stuff. In that instance I think the court should look at reimbursing the couple or their insurance company the cost of services rendered to date for starters along with their legal fees. Then I’d think the clinic should have to provide enough money that might cover compensatory IVF services by some other physician or enough money that would cover all the fees for domestic or international adoption. And I’d think the clinic should have to identify the source of the error and demonstrate that it was an isolated incident or be shut down. Physicians have to shoulder the burden of whatever the staff does in their private practices and if they were running a sloppy shop they should have their license at least suspended.
        I don’t think that testing should be optional that is exactly what happened at UC Irvine and the people whose sperm eggs and embryos were stolen are stuck because the people won’t come forward with their children to be tested and won’t themselves be tested. Many of them may not have told friends, family or the child that they are not related to the children they are raising. I think the people who have come forward to be tested are those that thought they were using their own genes, I think the ones who won’t come forward are the ones that thought they were buying donated genes so to them what do they care if the donor never intended to reproduce and never consented to let anyone raise their biological children. Finders keepers as it were – thats totally messed up. If everyone that utilized the clinics services just had their DNA put into a database from the beginning their sperm and eggs and embryos could be tracked and inventoried in a controlled way that would identify a mix up hopefully before implantation or if not at least before they brought the baby home. And again, at that point they could hammer out rights and custody in court – The first order of business is to get organized and record the facts clearly and truthfully and that protects all the patients and their future children.

        • There’s a lot to think about here and I may not cover it all.

          About people having their kids tested and whether it should be optional: I’m trying to think this through. Suppose couple #1 decides to have their three year old tested and it turns out to be the genetic material of the plaintiffs. What happens next? Personally I cannot imagine saying that we’d relocate the child. But if we don’t do that, what do we do? We could just say that the world is now a better place because now everyone knows what is what and the plaintiffs can know where their genetic material went. Do couple #1 now have to include the plaintiffs as part of their family? Or their child’s family? Can they tuck the knowledge away, planning to explain it all to their child gradually as the child ages? I have no idea what I’d tell a three-year-old. Indeed, even though I’m a fan of the truth I’m not sure I’d tell much of it to a kid that young.

          More fundamentally I suppose I’m wondering about what the plaintiffs really want. Do the plaintiffs really just want to know where the embryos ended up? Do they want the kids if there are any? Do they want a role in the child’s life?

          In general I don’t think the state ought to be able to go to a family and tell them what tests they must do or not do, what things they must tell their children and when, etc. To me, parental rights include the right to make decisions about a lot of things for your child instead of having the state make them. What the plaintiffs are asking is for some judge–a state authority figure–to order a whole lot of parents to do things that to me are pretty problematic. And, as I tried to show above, I’m not sure to what end.

          Don’t get me wrong–I see that the plaintiffs have something to complain about. I’m just not sure what we can make it better. It’s that pesky passage of time problem. (See yesterday’s post about Carolyn Savage, in whose case prompt discovery solved a lot of problems.)

          The standard remedy in law cases is money. It’s often a pale substitute, but it is what we do. Perhaps you could ask for notification for all the people who used the clinic so that people out there can make intelligent choices. Again–it won’t be perfect, but I wonder if it wouldn’t be better.

          • Well the bottom line is that they may not have gotten their parental rights on the up and up. There is something to consider if the couple who reproduced did not consent to some other woman giving birth to and raising their child , the people are not raising their child, they should never have gotten that child. I’m sure they want their child back and they will have to work something out. Yes the whole point is to get the stolen child back from who ever he or she was given to. Its not the people’s fault but why should the other couple suffer such an injustice why should the child be forced to. They should work out shared custody obviously something taylored to suit the exact situation.

  2. What was the outcome of this case? I’ve recently had a frozen embryo transfer. I had 4 frozen embryos, of which, one was thawed and transferred. It failed. I contacted the clinic to let them know and they told me that I had 2 left. Clearly I should have have 3 left. What should I do?

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