Family seeks wrongful death lawsuit after loss of frozen embryos

Approximately 4,000 eggs and embryos have been destroyed in the malfunction. The case raises ethical questions around IVF

Editor’s note. This is excerpted from a post written by SPUC—the Society for the Protection of Unborn Children.

Approximately 4,000 eggs and embryos have been destroyed in the malfunction.

A couple whose frozen embryos were destroyed in a storage tank malfunction could seek action for wrongful death–if a judge rules that an embryo is considered a life.

This is just one of the dozens of lawsuits facing The University Hospitals Fertility Clinic in Cleveland, after the failure in early March of a cryopreservation tank containing approximately 4,000 eggs and embryos belonging to at least 950 families.

The accidental destruction of these very young human beings is raising a host of ethical and legal questions, and highlighting some of the inherent problems of IVF.

Is an embryo a person?

In Cleveland, clinic patients Wendy and Rick Penniman’s attorney is “asking the court to declare that an embryo is a person and that life begins at conception,” allowing the couple to bring a wrongful death lawsuit. However, the Roe v. Wade decision, which legalised abortion, holds that a foetus, let alone an embryo, is not a person….

How do you put a figure on children?

Even without arguing that the embryo is a person, lawyers are struggling to determine what compensation is appropriate for what one affected patient calls “irreplaceable” – the loss of one’s children, or, as many see it, their only chance to become parents.

Adam Wolf, an attorney who is working on a number of these cases, tells MarieClaire.com that putting a figure on an accidentally destroyed embryo is one of the most challenging aspects of these lawsuits. “How to place a monetary value on an embryo is something I have struggled with for years. Because in some ways there isn’t enough a money in the world, and it is a little bit gross to think of monetary figure to represent the value of future children,” he says. “On the other hand, that is how the legal system compensates people.”

“It is really easy to quantify the amount of money that someone has spent on the process or treatment, and has paid in storage fees,” he continues. “It’s far more challenging to think: What is the price of parenthood? How much do you value the ability to have children?”

Experimenting on embryos

The case also highlights how the death of embryos is treated differently, depending on the circumstances. Between 1978 and 2002 68,000 IVF babies have been born but in the process 1.2 million embryos created by IVF were frozen, destroyed or used in research. Embryos are not legally seen as persons, and are often deliberately destroyed or left frozen indefinitely.

SPUC has spoken out strongly against using embryonic human being for experimental purposes. Dr Anthony McCarthy criticised the proposal to extend the time limit on using embryos for experiments and made the point that parents do think of their embryos as children.

This is borne out by the distress to parents caused by the Cleveland fertility clinic malfunctions.

“I feel like I failed them”

Kathy and her husband, Ben had been planning on implanting one or more of their five frozen embryos this coming August, and were going to donate any remaining to another couple – a process known as “embryo adoption”.

“We wanted to do an open adoption, and keep in touch with the family. I realized that I needed to know that they were okay,” Kathy tells MarieClaire.com. But now none of this is possible, because their five embryos, stored at University Hospitals, are gone.

“Even if it didn’t make sense for my husband and I to raise them, I was still their mother and I wanted to protect them and I feel like I failed them now.”