Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits, (1) In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. (2) A New York clinic mistakenly implanted one woman's embryos in another's uterus. (3) A Florida clinic implanted a woman's embryos after possibly exposing them to Mad Cow Disease. (4) Nonetheless, these plaintiffs, along with others like them, (5) lost--not before juries and not because their doctors were careful, but because their claims were adjudged legally incognizable. Their claims failed because the law lacks a category of injury fitted to the harm parents and prospective parents endure when IVF goes wrong. Put another way, of a tort's four elements (duty, breach, causation, injury), it is with the last--injury--that existing law falls short of the demands of the new technology.
What is needed, then, if IVF plaintiffs are to recover, is a new category of injury--"procreative injury"--based on the legal recognition of the human interest in procreation. I will argue that tort law should recognize and protect this procreative interest. (6) In practice, the right to have this procreative interest protected would be the basis for a new cause of action. Call it the tort of "reprogenetic malpractice" (7): Where a doctor undertakes a duty to care for a patient's procreative interest, and negligently breaches that duty so as to cause the patient procreative injury, the law should provide a remedy.
A word is needed about why the IVF context is important--why the "embryo switching," "wrong sperm," and other cases discussed below are more than isolated curiosities. The extra-corporeal manipulation of gametes and embryos is the first, indispensable step in genetic engineering, genetic screening, embryonic stem cell research, the creation of human-animal hybrids and chimeras, certain forms of sex selection, and human cloning. (8) Consequently, IVF doctors and clinics are the gatekeepers to these much-publicized activities at the border of medicine, research biology, genetics, and eugenics. And individual IVF-related injuries, even if they are rare now, (9) are not going to stay rare for long. The field is young, (10) large, (11) growing, (12) prone to experimentation, (13) and relatively unregulated. (14) With no theory of rights fitted out for IVF, tort law is trailing the new technology, (15) unprepared to perform either of its two functions: individual justice or social regulation. (16)
FAMILIAR CATEGORIES OF LEGAL INJURY
For some aggrieved IVF patients--those who sue their doctors or clinics after sustaining injury to their procreative possibilities--no existing legal theory quite seems to fit. Sometimes courts stretch the law and permit a claim; more often, they dismiss. For if the law chooses not to protect a certain interest, then even the most negligent abuse of that interest does not make a tort. (17) The law does not recognize IVF plaintiffs' procreative interest, so they cannot recover for "procreative injury," no matter how egregious. Thus, plaintiffs turn to an array of more familiar but less accurate accounts of their injury, most of which will not stick.
Emotional distress is an example. In Harnicher v. University of Utah Medical Center, the nearly infertile David Harnicher and his wife Stephanie mixed his sperm with the sperm of a donor selected to resemble David; the resulting child might or might not be David's, but either way the couple could "believe and represent" the child to be his. (18) As it turned out, Stephanie gave birth to triplets who looked nothing like David; the clinic had switched donors #83 and #183. The Harnichers were devastated, (19) but just what were they to argue in court? They had not been physically injured. They had no financial losses beyond those they had bargained for. For lack of a better alternative, they claimed emotional distress--and ran afoul of the old common law rule forbidding recovery for negligently inflicted emotional distress absent accompanying physical injury. (20) Many other IVF plaintiffs make the same claim and lose for the same or similar reasons. (21) What was true for the Harnichers in their mixed-sperm scenario was equally true for Cora Creed when her embryos were implanted in another woman in Creed v. United Hospital, (22) or Jane Doe when hers were put in a preservative solution possibly infected with Mad Cow disease in Doe v. Irvine Scientific Sales C0. (23): There was no physical injury to which emotional distress could attach, and tort law does not generally protect an individual's bare interest in tranquility of mind. (24)
A second type of injury, one the law wholeheartedly protects against, is physical injury. If IVF plaintiffs could point to even a minor form of physical injury associated with their doctors' negligence, they could get their grievances to a jury; emotional distress could then attach and swell the damages. Cora Creed and Jane Doe tried to find a physical injury hook by arguing that the WF procedure itself constituted physical injury: Extracting eggs and implanting embryos (painful surgeries both) constitute compensable physical...