An English couple has a novel case against Cardiff’s University Hospital of Wales after their last embryo was mistakingly implanted into another woman. The hospital has agreed to pay damages in the lawsuit and apologized.

When the hospital discovered its mistake, it gave the patient a morning-after pill to terminate the procedure — resulting in the destruction of the embryo.
Initially, the hospital offered the couple an offer for a free round of IVF treatment. Not surprisingly, they declined. The couple previously had given birth to a son in 2003 but the remaining embryos were frozen. This was the only surviving embryo and they had decided to try for a second child.

In the United States, this would make for a particularly interesting case. The negligence and infliction of emotional distress claims are obvious. However, given the uncertainty that the procedure would work, there is a question of how to treat the damages. Ironically, recent legislation in pro-life states have been pushing the status of fetuses as people. However, this could not be fashioned in torts as a wrongful death action.

We have seen some cases of negligence by hospitals or labs. In New York, a couple sued after the hospital switched embryos — resulting on a white couple giving birth to twins — one black and one white, here. Dr. Lillian Nash ( Dr. Nash, Dr. Dov B. Goldstein and Dr. Obasaju) were allegedly responsible for not only implanting Mrs. Donna Fasano with four of her eggs fertilized by her husband, Richard, but also with several other fertilized eggs from Mrs. Deborah Perry-Rogers and her husband Robert. The Rogers went to court to determine the genetic identity of the babies after the Fasano’ refused to cooperate in the testing. It would have made for an interesting legal challenge. It is not clear who would have the best claim to the child found to be genetically linked to the Rogers. Since Fasano brought the baby to term and was raising the baby at the time, she could make a strong argument for claiming both babies. However, in an amazing settlement, the Fasanos agreed to give up one boy to the Rogers, here.

In another such lawsuit, a couple accused the UC Irvine fertility clinic of knowingly implanting their embryo in another woman for profit, here. Kelly Gora said that her embryo was sold to a South American woman.

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Kudos: Hugh Sansom