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What happens when a fertility clinic is responsible for destroying reproductive material?

A recent article in Marie Claire delved into the story of a Cleveland fertility clinic that lost 4,000 frozen eggs and embryos belonging to 950 patients and featured commentary by Bill of Health contributors. In the piece, “When Your Dreams of Motherhood Are Destroyed,” three Bill of Health/Petrie-Flom Center affiliates discussed some of the many legal challenges of this particular case, and others like it.

The story was reported by 

Dov Fox, on the lack of federal regulation:

“With government funding comes government oversight. If the government isn’t contributing to this work, it doesn’t really have a foothold to say, ‘This is how you should do it,’” says Dov Fox, professor and faculty director of the Center for HealthLaw Policy and Bioethics at the University of San Diego School of Law. “The position that Congress reached then, and really hasn’t budged from since, is that it’s going to stay out of the way.” It’s “extremely rare” for the government to take such a hands-off approach, Fox adds. “In every other area of medical research, the government plays a big part. How research is conducted, what kinds of certification or training practitioners need—all of that is fair game for every other area of medicine except this one.”

I. Glenn Cohen, on the political reality of regulation: 

“Any attempt to regulate reproductive technology almost inevitably leads to difficult questions relating to abortion,” says I. Glenn Cohen, director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

“As a result, people have been shy, including those on the left who might be interested in pushing regulation in this area, because once they do so, there’s a real possibility it ends up resulting in restricting women’s reproductive rights.”

Naomi Cahn, on mandatory reporting laws:

… the CDC does not ask clinics to disclose how often tanks malfunction or how many genetic samples have been destroyed, so there’s no way of knowing how often such incidents occur. “I suspect this happens a lot more often than we know, but because of the lack of regulation and transparency, we don’t really know,” says Naomi Cahn, professor at the George Washington University Law School and author of the book Test Tube Families: Why the Fertility Market Needs Legal Regulation. “We need mandatory reporting whenever there are mishaps like this. It’s important that when this happens, we find out more about it, because that’s the only way we’ll be able to better safeguard people and their precious reproductive material.”

Alex Pearlman

Alex is the Editor in Chief of Bill of Health. As a reporter and editor, Alex has focused on covering the intersection of science and technology policy and human rights. She holds a masters degree in Bioethics and Society from King's College London. Alex is also the Communications Manager at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

One thought to “What happens when a fertility clinic is responsible for destroying reproductive material?”

  1. Reproductive material is a very rare and unique good, and that makes it very difficult to regulate. The legislator must consider not only the commercial value, but the human value, since the main reason to use and preserve this material is to develop a human being.
    The conflict emerges from the commodification of this material, when two parties (future fathers and the clinic), sign a contract, conferring to the reproductive material the condition of a good, regulated by the conditions stablish in the four squares of a contract that both parties agree. When this good is destroy by negligence of one of the parties (clinic), opens the door to claims such as damages, breach of contract, etc. as in any other good.
    Right when we arrive to this point of the discussion, is imperative to remember that we are talking of the destruction by negligence of the reproductive material of a possible son or daughter of some parent who have a very especial expectation, not only to receive what he or her paid for, but to receive the longing of his hart, his or her baby.
    With this particular consideration in mind, the legislator must consider this important aspect of the relation, and take this kind of commercial relation and remove it from a mere contractual negotiation, to a government regulated activity, by stablishing certain parameters that not only consider the human beings lives involved, but their rights, and impose to these clinics a more sever sanction when this kind of negligence drives to the destruction of possible sons or daughter of any parent.
    The government must regulate this activity thru minimum protocols, in order to give the opportunity to develop it but within certain parameters that protect situations like this and settle responsibilities for this clinics and protects the parents and child rights.

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