Embryo Destruction Lawsuits Open New Legal Frontier

As of January 2019, following a months-long break in the cases due to judicial transition, at least 70 lawsuits arising from the accidental destruction of human embryos and eggs were pending in Ohio state courts. The cases highlight the complex questions surrounding the legal status of embryos and, by consequence, theories of liability for the parties involved.

In 2018, a technological malfunction of a storage tank in University Hospitals Fertility Center (the Center) caused the destruction of embryos and eggs. The Center offers in vitro fertilization services (IVF) for people who have had difficulty conceiving children. Through IVF, embryos can be created in a laboratory and then implanted into a woman’s uterus. It is a lengthy, expensive process involving hormone injections and surgical procedures. The embryos are maintained in a storage tank through a process called cryopreservation, in which liquid nitrogen freezes the embryos, keeping them viable so that they may be implanted at a later date.

On March 3, 2018, the Center’s storage tank malfunctioned, and its temperature rose, destroying the viability of the embryos. At the time of the malfunction, the Center’s staff allegedly failed to answer the storage bank’s alarms, including its off-site monitoring systems. The resulting legal complaints allege that the Center knew the storage tank was defective, as they were manually filling it with liquid nitrogen instead of relying on its automatic reservoir. Furthermore, the Center had exhausted its own nitrogen supply and was using supplies from another lab. In addition to the Center, litigants have named the manufacturers of the storage tanks and CAS Aided Solutions LLC, the company that implemented the temperature monitoring system, as potential defendants.

The lawsuits make a range of claims, including breach of contract; negligence; breach of bailment; breach of implied warranty of fitness for a particular purpose; conversion; breach of fiduciary duty; declaratory and injunctive relief requesting prioritization in medical care; negligent/intentional infliction of emotional distress; punitive damages; negligent hiring, training, retention, staffing and supervision; and misrepresentation. The cases were ultimately consolidated into a single case in front of a single Ohio county judge.

In an effort to preclude such wide-ranging liabilities, the Center filed a motion requiring all plaintiffs to limit their claims to malpractice, which would have imposed a one-year statute of limitations from the date of the malfunction and would have also restricted the potential damage awards to $350,000 for individuals and $500,000 for couples. Judge Friedland, who has since retired, rejected this motion, ruling that failing to properly monitor cryopreservation storage units was not “practicing medicine.” Judge Friedland’s successor, Judge Kilbane, may ultimately be forced to revisit this issue in the event the Center finds a means to refile its motion.

While the majority of these cases are premised on embryos being considered legal property, one couple tried to bring suit to declare the embryos as persons in order to pursue a wrongful death claim, further complicating this event’s aftermath by inviting arguments about when life begins. Judge Friedman dismissed the wrongful death action, writing, “The parents may believe that the embryos they created are already persons, but that is a matter of faith or of their personal beliefs, not of science and not of law.”

Freidman’s ruling has been appealed to the 8th District Ohio Court of Appeals, but most legal experts say the effort to have embryos recognized as people is unlikely to succeed. Reproductive law is dynamic, however, with states coming to varying conclusions. For example, in Louisiana, an embryo can actually bring suit on its own behalf.^[1] Many of the families involved in this event have expressed their willingness to continue their appeals all the way to the U.S. Supreme Court, if necessary.

The rulings in these Ohio cases, and the legal theories upon which they are ultimately based, have the potential to result in sweeping changes to the IVF industry by defining how IVF will be treated in the eyes of the law. Couples undergoing IVF, facilities performing the procedure and even suppliers of reproductive technology equipment should stay informed about their respective rights and potential liabilities in this area. Likewise, attorneys representing them should stay up-to-date on the law and be aware of the special nuisances in crafting contracts.

When new technology and medical treatments are developed in response to patients’ challenges, existing case law often does not apply. Patients, practitioners and technology providers must understand that they are entering uncharted legal territory, and that they may not be afforded the protections offered by traditional arrangements and contracts.

[1] La. R.S. § 9:124 (1986).