The Daily Journal published an op-ed article by Blogger and University of San Diego (USD) School of Law Associate Professor of Law Dov Fox titled, “Reproduction Gone Awry.”
In his article, Fox points to last month’s lawsuit against a Beverly Hills fertility clinic — the same one sued by Sofia Vergara’s ex in a dispute over control of frozen embryos — arguing it would be a mistake to write it off as another aberration. The clinic is accused of having negligently destroyed the only seven frozen embryos that a Sherman Oaks woman created using her donor-fertilized eggs.
The article argues that high-tech procreation goes largely unregulated makes these mistakes more common than you might think. A comprehensive study by Johns Hopkins University of U.S. fertility clinics found that more than one in five report errors in diagnosing, labeling and handling genetic samples or embryos. See “Genetic testing of embryos: practices and perspectives of US in vitro fertilization clinics” (2008).
Mistakes like these can also frustrate efforts to avoid parenthood or to have children who are born healthy. Fox refers to one recent case in which a pharmacist filled birth control prescriptions with prenatal vitamins.
Fox goes on to state that the victims of such transgressions have little recourse under the law and they almost always lose in court. Contract claims can’t vindicate patient interests where providers, despite their negligence, haven’t broken any specific promises. Like all doctors, reproductive specialists are careful to avoid guaranteeing particular results of their care. And they usually insist that patients waive liability for even implied breaches of contract.
Moreover, Fox also argues that ordinary medical malpractice won’t work either because patients in the reproductive context don’t sustain bodily intrusion or impairment beyond the treatment they agreed to. Nor can recovery for economic setbacks or emotional distress capture the deepest injury at stake. Indeed, it is one our law doesn’t recognize: namely, having been robbed of the ability to determine the conditions under which to become pregnant or have children.