In Vitro Injuries

How should courts compensate would-be parents when assisted reproductive technology goes terribly wrong?

Sad baby.
Photo illustration by Slate. Photo by Thinkstock.

This post is part of Outward, Slate’s home for coverage of LGBTQ life, thought, and culture. Read more here.

Hundreds of would-be parents got a call this week that shattered their hopes for the family they desperately wanted. Some, like Megan and Jonathan Bauer, couldn’t conceive on their own. Others, like Amber and Elliot Ash, were cancer survivors trying to give their only child a sibling. All were storing reproductive materials at facilities outside of Cleveland and San Francisco.

Freezer failures at both devastated thousands of stored embryos and the parental aspirations they represented. The cause hasn’t been determined. But unreliable quality controls seem more likely than a reasonable slip of the hand or lapse in judgment. “My heart just sank,” Amber recalls. The Bauers “feel like their dreams of having children together … have been stolen from them.”

Mistakes happen more often than you’d think in the so-called Wild West of reproductive medicine. Pharmacists fill prescriptions for birth control pills with prenatal vitamins, doctors predict that healthy fetuses would be stillborn, donor profiles hide mental illness and criminal history, fertility clinics implant one couple’s embryo into someone else, in vitro labs contaminate embryos with mad cow disease.

Exact figures are hard to come by. There’s no reporting system for reproductive errors in the United States. But available data points are bracing. A 2008 survey of nearly half of all U.S. fertility clinics found that more than 1 in 5 misdiagnosed, mislabeled, or mishandled people’s reproductive material. And in a 2016, 18–24 percent of patients in a national ratings website reported damaged or destroyed samples among a host of other errors.

These cases confound courts and legislatures. Federal and state laws are silent when it comes to test tubes and tube ties. The multibillion-dollar fertility industry flexes its lobbying muscle against occasional calls to regulate it, like after the 2008 “octomom” controversy. And policymakers are wary of wading into charged conflicts over the likes of selective abortion and IVF that cut across traditional partisan divides in ways that obscure their electoral implications.

Courts usually dismiss reproductive injuries that don’t map onto familiar legal interests in bodies and bank accounts. Plaintiffs suffer no physical harm or property loss when their sex cells are destroyed or infected or transferred into someone else. And applicable laws rarely compensate for emotional distress or dashed expectations when they aren’t tied to some more tangible harm.

Redress is also denied when botched vasectomies or abortions foist pregnancy or parenthood on people who’d gone to great lengths to avoid it. And abortion or adoption aren’t reasonable to expect in order to seek recovery. But courts won’t compensate victims because they deny that they’ve been harmed. Any inconveniences of parental life can’t compare to the “all-important, incalculable but invaluable ‘benefits.’ ” Having a child isn’t a burden, they insist; it’s a blessing.

Thorniest of all are cases in which negligence leaves people with a child who’s genetically related to them, for example, or free of some disease or disability they’re at risk of passing on.  A fetal misdiagnosis for health or an embryo mix-up of heredity can thwart people’s visions of the family life that they believe would be more rewarding or meaningful for them. But most states rule out relief for negligence that produces different offspring traits than the ones that parents had chosen. Courts are simply “unwilling to say that life … may ever amount to a legal injury.”

Recent developments abroad point in a more promising direction. A few months ago, a Singapore couple won their suit against the clinic that swapped the husband’s sperm with a stranger’s. The highest level of the country’s Supreme Court called the 2017 case “one of the most difficult” in its history. The unanimous opinion relied on a Columbia Law Review essay I’d written to establish a first-of-its-kind right to recover for the wrongful denial of “genetic continuity” and biological lineage.

Not all reproductive wrongs are created equal. Some impose unwanted procreation, leaving people to carry or raise a child they were in no position to. Others deprive parenthood of those who yearn for it, leaving them with an empty cradle. Others still confound plans for not just any child, but one with particular genetic traits. The legal claims and defenses depend on whether procreation was imposed, deprived, or confounded.

Courts should recognize a right against each, pegging damages for successful actions on two factors. First is how badly the injury harms them. Severity depends on the reasons they sought treatment and the repercussions of its defeat. Second is the extent to which professional misconduct was to blame. The greater chances that the reproductive loss can be chalked up to user error, pre-existing infertility, or genetic uncertainty, the lower the awards.

And public interest or morality could void compensation altogether. Take the white lesbian couple that sued after getting a black donor instead of the white one they chose. The court shouldn’t recognize claims like this one, which would risk breathing life into the pernicious idea that it is worse for parents to have a child with darker skin or mixed ancestry.

But courts should vindicate the Ashes and Bauers. Both couples are suing on behalf of hundreds of others like them whose embryos were also lost in those same two incidents. Critics might argue that court-ordered compensation would disfavor or devalue adoptive, LGBT, or other nontraditional families who flourish in the absence of genetic ties. But there’s nothing so bad or special about wanting to see a resemblance in your baby’s appearance; many same-sex parents even use donors or surrogates to help connect their family to a common genetic past and future.

Entitling parents to sue needn’t deny that they accept their reproductive fate or cherish any other child they end up with. Andrew Solomon’s Far From the Tree tells the story of more than 300 families who “learn to tolerate, accept and finally celebrate children who are not what they originally had in mind.” Solomon reveals how these parents find themselves “falling in love with someone they didn’t yet know enough to want” and ultimately grateful for the very experiences that they would have sacrificed everything to prevent.

The tenacity of parents’ love doesn’t, however, diminish their legitimate interest in selecting offspring traits, or the real losses when that interest is wrongfully frustrated. Solomon captures the episodic despair, isolation, and indignation of even the most resilient parents. And our law doesn’t ordinarily condition legal relief for unjustly inflicted adversities on whether victims abide or come to terms with them. Nor does it immunize wrongdoers from liability just because plaintiffs tough it out or find consolation in how things turned out in the end.

Judges have created new rights before where advances in technology have outpaced the law. For most of American history, the media was free to expose people’s secrets. But then the invention of Kodaks fueled sensationalism that made increasingly intimate moments far more public. Courts in most states eventually recognized a right to privacy—the same one that a century later bankrupted Gawker Media for posting Hulk Hogan sex tapes.

Just as incursions by the click camera and penny press placed privacy interests in sharp relief, switched donors and lost embryos bring reproductive interests to full expression. These may be first-world problems. But they’re not frivolous or trivial harms. Family planning lays our deepest identities, experiences, and relationships on the line. These are wrongs in need of rights.