CONTRACT REMEDIES NEED NOT UNDERCOMPENSATE ASPIRING PARENTS WHEN CRYOPRESERVED REPRODUCTIVE MATERIAL IS LOST OR DESTROYED: RECOVERY OF CONSEQUENTIAL DAMAGES FOR EMOTIONAL DISTURBANCE WHEN BREACH OF CONTRACT RESULTS IN THE LOST OPPORTUNITY TO BECOME PREGNANT WITH ONE'S OWN BIOLOGICAL CHILD.

• Author: Hnylka, Joseph M.

TABLE OF CONTENTS I. INTRODUCTION 102 II. CRYOPRESERVATION OF REPRODUCTIVE MATERIAL IN THE UNITED STATES 105 III. CONTRACT THEORY'S RELUCTANCE TO AWARD DAMAGES FOR EMOTIONAL DISTURBANCE 107 A. Breach of Contract Cases Addressing Emotional Disturbance Damages and Cryopreserved Reproductive Material 111 1. Robertson v. Saadat 111 2. Hardin v. Obstetrical and Gynecological Associates P.A. 113 3. Frisina v. Women and Infants Hospital of Rhode Island 116 B. Several Helpful Tort Cases that Address Foreseeability of Emotional Disturbance when Cryopreserved Reproductive Material is Lost or Destroyed 119 1. Witt v. Yale-New Haven Hospital 120 2. Perry-Rogers v. Obasaju 121 IV. FORESEEABILITY OF EMOTIONAL DISTURBANCE DAMAGES CAUSED BY THE BREACH OF A CRYOPRESERVATION CONTRACT 122 A. Foreseeability of Emotional Disturbance Damages Based on the Nature of the ART Process 123 B. Foreseeability of Emotional Disturbance Damages Based on the Purpose of the Cryopreservation Agreement and the Surrounding Circumstances 124 C. Certainty 126 V. EXCULPATORY CLAUSES IN CRYOPRESERVATION CONTRACTS 130 A. Typical Contractual Language Used to Limit Liability 130 B. Enforcement of Exculpatory Clauses in Cryopreservation Agreements 133 1. Exculpatory Clause s that Violate Public Policy 136 2. Exculpatory Clauses that Implicate Affect Public Policy 141 VI. CONCLUSION 145 I. INTRODUCTION

Imagine a young man and a young woman, both in their twenties, both diagnosed as having cancer. Both are told that their cancer treatment will render them infertile. However, they are given the promising news that their reproductive material - a man's sperm, a woman's eggs, or a couple's embryo - can be cryogenically preserved and stored, so they may someday become parents despite their looming infertility. They are overcome with joy at the prospect they someday will be parents of their own biological children, which was their lifelong desire. Now, after both receiving the cancer treatments that render them infertile, imagine their emotional pain and devastation when they receive the tragic news that their cryogenically preserved reproductive material was lost or destroyed by those responsible for storing it. They will never be parents of their own biological children! This scenario is, unfortunately, all too common in the United States as reproductive material is lost, destroyed, or rendered unusable due to human error or storage equipment failure. Regarding stored embryos, (3) one recent study reported that, in a ten-year period extending from 2009 to 2019, approximately 133 lawsuits were filed in the United States seeking recovery for cryopreserved embryo loss, damage, or destruction. (4) A few years ago, over four-thousand cryopreserved human embryos were destroyed at University Hospital Fertility Clinic in Cleveland, Ohio, when a storage tank alarm was turned off and the tank's cooling system later malfunctioned. (5) Similarly, approximately 3,500 eggs and embryos were destroyed when a cryopreservation tank malfunctioned at a fertility clinic in California. (6) Although a fertility clinic may apologize and offer storage fee refunds, free services, and emotional counseling, many aspiring parents lost their only opportunity to become pregnant with their own biological child and want "more than an apology and a refund." (7)

If these individuals are to receive damages to properly compensate them for their injuries, the damage award must include recovery for emotional disturbance. (8) In each situation, one can imagine the grief and emotional devastation experienced by aspiring parents who can no longer use the stored reproductive material to have their own biological children. When aspiring parents' reproductive material is lost or destroyed, the primary harm typically is nonpecuniary in nature; the primary harm is emotional. (9) The grieving individuals' main concern usually is not to recover their storage fees and the costs associated with extracting their reproductive material for storage, nor is their focus on the pecuniary value of the lost reproductive material. (10) Instead, the primary harm for which they seek to recover is the severe emotional disturbance (11) caused by the loss or destruction of their reproductive material which, in turn, deprived them of the opportunity to use that reproductive material to have their own biological children.

This article focuses on recovery for emotional disturbance based on breach of contract. of course, attorneys representing aspiring parents whose reproductive material has been lost or destroyed also may pursue recovery for emotional harm in tort. (12) However, as scholars have noted, tort law often leaves aspiring parents without compensation for emotional harm when reproductive material is lost or destroyed. (13) When reproductive material is lost or destroyed, the wrongful conduct typically occurs miles away from the aspiring parents and, therefore, they suffer no physical injury or impact. As a result, recovery for parasitic emotional disturbance typically is unavailable. (14) In addition, because stand-alone emotional harm claims without a physical injury are suspect in many jurisdictions, (15) the courts have adopted traditional barriers to recovery which render recovery for emotional disturbance virtually impossible in most cases involving loss or destruction of reproductive material. (16) When reproductive material is lost or destroyed, aspiring parents suffer no physical injury/impact, (17) are not in the "zone of danger" (18), and cannot meet traditional bystander recovery rules. (19) In these traditional barrier jurisdictions, breach of contract may represent the aspiring parents' only hope to recover for emotional harm. This article posits that damages for emotional disturbance should not be restricted to tort recovery when reproductive material has been lost or destroyed. Consequential damages for breach of contract should include an award for emotional disturbance when the loss or destruction of cryopreserved reproductive material deprives aspiring parents of an opportunity to become pregnant with their biological child.

As will be discussed, when reproductive material is cryogenically preserved and stored, most Assisted Reproductive Technology ("ART") clinics and practitioners have the aspiring parents sign a contract. (20) This article posits that, in situations where reproductive material is cryopreserved to achieve a later pregnancy, ART clinics and practitioners have actual or constructive knowledge at the time of contracting of plaintiffs' particular reason for storing the reproductive material, so as to support consequential damages for emotional disturbance. This knowledge of the contract's purpose, coupled with the nature of the transaction and the surrounding circumstances, put ART clinics and practitioners on notice at the time of contracting that emotional disturbance is particularly likely to result from a breach. Such an award will not give the aspiring parents more than they bargained for. Instead, unless aspiring parents are awarded consequential damages for emotional disturbance, breach of contract recovery will leave them undercompensated. The article also posits that typical broad, sweeping exculpatory clauses contained in cryopreservation agreements that attempt to negate any and all liability for freezing and storage of reproductive material, even liability based on a lack of due care, should not be enforced because such clauses arguably render the agreement illusory and contravene public policy.

Part II of this article will discuss the cryopreservation of reproductive material in the United States. Part III will address contract theory's reluctance to award damages for emotional disturbance caused by a breach. Part IV will address the foreseeability of emotional disturbance damages caused by the breach of a cryopreservation contract. Part V will address exculpatory clauses found in cryopreservation contracts. Part VI contains the conclusion.

2. CRYOPRESERVATION OF REPRODUCTIVE MATERIAL IN THE UNITED STATES

   Cryopreservation is the process used to freeze and thaw reproductive material--such as sperm, eggs, and embryos - for later use in in vitro fertilization (IVF). (21) IVF is an assisted reproductive technology in which a woman's eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. (22) IVF is used to treat many causes of infertility. (23) Many IVF procedures use sperm, eggs, or embryos that were cryopreserved. Based on the most current data compiled by the CDC, there were 330,773 reported ART cycles performed in 2019 in the United States alone, 121,086 of which involved freezing eggs or embryos for later reproductive use. (24) Societal changes, improved cryopreservation techniques, and an increased desire "to preserve fertility" have led to an increased demand for the use of ART. (25) According to a recent survey, cryopreservation consultations "increased exponentially" during the coronavirus pandemic, rising between 30 and 60 percent, depending upon the clinic. (26) Although the precise number of cryopreserved embryos currently in storage is unknown, it has been estimated that one million embryos were stored in the United States as of 2017. (27) The American Society for Reproductive Medicine (ASRM) has reported that "virtually all" cryopreserved embryos are stored at clinics rather than being stored off-site. (28) A recent survey of clinics by ASRM noted that "most clinics were able to tell us why embryos were in storage" (29) which indicates that most clinics had actual knowledge of intended use of the cryopreserved reproductive material stored at their clinic. The primary reason for cryopreservation of reproductive material such as embryos is to achieve pregnancy using ART. (30) In fact, some contracts for the storage of embryos include specific language stating that the purpose of storage is to preserve embryos for a...