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.