§ 9.6 Negligence Theories

• Library: Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science (ABA) (2018 Ed.)

§ 9.6 negligence Theories

A New York appellate decision reflects the potential for a negligence claim growing out of a mistaken implantation of an embryo during an IVF procedure. An African-American couple and a Caucasian couple were participating in the IVF program. The embryo of the African-American couple was accidentally implanted in the uterus of the Caucasian woman; she gave birth to two children, one African-American and the other Caucasian. After a dispute over the African-American child, the child was transferred to its genetic parents. However, the Caucasian couple sought visitation rights, which the court denied.⁴² Both couples sued the physicians who had caused the mistake. The suit by the African-American genetic parents was permitted to go forward, based on a theory of emotional distress caused by the loss of an opportunity to experience pregnancy, prenatal bonding, and birth, as well as loss of the child's company for four months when the child was in the custody of the birth parents.⁴³ The Caucasian couple's claim for damages was also permitted to go forward on claims of physical and emotional injury, including the need for a cesarean section to deliver the two children, and the need to make painful and difficult decisions on whether to carry another couple's embryo to term and whether to give up custody of the child to the genetic parents.⁴⁴ Other instances of implantation of the wrong embryo have also been reported.⁴⁵

Another example of the mistaken use of the wrong gametes is found in a Utah case. A couple undergoing assisted reproduction services selected sperm donors with physical features similar to the husband, but after delivery of triplets, one looked quite different from the husband; genetic marker tests established that one of the sperm donors the clinic used was not on the list of those selected by the couple.⁴⁶ However, in that case, the couple did not succeed in establishing negligent infliction of emotional distress.

Negligence in failing to properly screen gamete donors is another example of conduct giving rise to a potential claim when the negligence causes harm. An example is found in a Sixth Circuit decision that held a surrogacy clinic liable for failing to screen a sperm donor for sexually transmissible disease that caused a child to be conceived with cytomegalic inclusion disease.⁴⁷ Such claims are premised on the familiar tort principle that a person offering professional services owes a duty to protect against foreseeable risks of injury. A Pennsylvania court ruled that a jury...