Is a Move Towards Freezing Oocytes a Move Towards Less Legal Liability for IVF Clinics? — Reflections from ASRM Annual Meeting Round 1

It was an exciting time to attend the annual meeting of the American Society for Reproductive Medicine in San Diego this week.  Just before the meeting, ASRM reclassified cryopreservation of oocytes for future use, removing the procedure’s “experimental” label. The possibility of increased uptake of this procedure raises many ethical issues (some of which I hope to discuss in a later post), but it also presents the potential to sidestep a number of legal liabilities and ethical issues associated with frozen embryos which are not implicated by frozen gametes. This begs the question: Is a move towards egg freezing in lieu of freezing embyos a safeguard against some types of liability for IVF clinics?  I think this may be the case.

Perhaps most importantly, frozen oocytes will not implicate personhood laws.  Advocates of personhood laws, such as vice presidential candidate Paul Ryan, have come under fire by pro-choice and feminist groups for their attempts to ascribe legal rights to embryos and fetuses.  However,  IVF clinics and clinicians should also be concerned.  It is an unanswered legal question if an IVF clinician or embryologist could be found guilty of manslaughter if there was an accidental thaw of a cryotank full of embryos.  There have been no such criminal proceedings brought against an IVF clinic — yet.  Freezing eggs would guard IVF clinics in states with personhood laws from this kind of criminal liability. Another question implicated by personhood laws is whether there is a doctor-patient relationship between a newly-created or frozen embryo. If one exists, then negligence claims regarding proper storage of embryos could become medical malpractice claims; if frozen gametes are mishandled it is unlikely such a relationship could exist.  Litigation against the Oschner Fertility Clinic (which has now closed) brings some of these issues to life.

When patients sued the Oschner Clinic for mislabeling vials containing frozen embryos, the Louisiana state court found that there was no medical malpractice claim since the task of labeling tubes did not constitute an act within the confines of a doctor-patient relationship. This did not, however, mean that there was no valid claim; rather, its importance to the case was that filing the suit did not require fulfilling the the procedural requirements of Louisiana medical malpractice law (which require a preliminary hearing/screening process).  However, it also follows that the error is probably beyond the scope of medical malpractice insurance, which could have profound implications for IVF clinics and physicians.  Most relevant to a move towards freezing oocytes is that there is no greater risk for an IVF clinician to find herself in court fighting a claim outside the scope of malpractice insurance if frozen oocytes are mishandled rather than frozen embryos since the court held there was no malpractice claim even when embryos were involved.

In addition, earlier this month, the Louisiana court denied class certification to the large group of patients who sued based upon Oschner’s failure to correctly label tubes.  While the court denied certification of multiple sublcasses, most interesting was the rationale used to deny class certification to the group of patients with existing frozen embryos.  The court ruled that the class lacked commonality because some patients may have a prevailing interest in the embryos to create their families while other patients may have no remaining interest in the embryos.  For example, patient(s) who had subsequently successfully created a family, gotten divorced, or reached an age at which becoming pregnant was no longer a viable option may have a much diminished interest in the embryos than patient(s) seeking to get pregnant next month.  Thus, the court reasoned that some would have suffered “no injury” and have no compensable damages to claim.

This piece of the court’s reasoning may have implications for a move from frozen embryos to frozen eggs as well.  Arguably, individuals have differing interests in frozen eggs than in frozen embryos.  Some couple’s interests in their frozen embryos may simply be to donate them to others rather than thaw and discard them due to their beliefs either that the embryo is a living being or that embryos deserve a greater amount of respect than to be uselessly discarded.  Many individuals, however, do not ascribe the same type of value to gametes.  Therefore, by the logic of the Louisiana class certification decision, the harm (and thus damages) that follow from mistakes involving frozen eggs may result in lower costs for the clinics that make them.

While a move towards frozen oocytes may present its own unique set of ethical or legal problems, and the Oschner case is only valid law in Louisiana, it seems to me that IVF clinics may be well advised to consider filling their cryotanks with more eggs than embryos.

 (My thanks to Susan Crockin for a rich discussion of the Oschner case at ASRM).


Professor Katherine L. Kraschel, an expert on the intersection of reproduction, gender, bioethics and health policy, with a particular concentration on fertility care and reproductive technologies, holds an interdisciplinary appointment with the School of Law and Bouvé College of Health Sciences at Northeastern University.

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