Can Couples Sue Fertility Clinics for Reproductive Negligence?

As technological advances in medicine make it possible for older people and those with fertility challenges to become pregnant and give birth, increasing numbers of people are using fertility clinics. Just as in any other medical field, fertility specialists and their staff make preventable mistakes. However, with reproductive negligence or malpractice, the stakes are incredibly high.

Couples or individuals who desperately want to give birth to a child, come to a fertility clinic for help in making this miracle occur. Not only is fertility treatment highly expensive, and frequently not covered by insurance, but individuals seeking such treatment are emotionally vulnerable, and they place a tremendous amount of trust in the fertility specialists to help them grow their families using reproductive technology.

Examples of reproductive technologies

Those who have experienced negligent care at the hands of a fertility doctor in a fertility clinic may be able to file a medical malpractice lawsuit against the responsible parties for the following fertility treatments:

• In vitro fertilization (IVF)
• Intrauterine Insemination (IUI)
• Intracytoplasmic sperm injections (ICSI)
• Embryo genetic testing
• Surgical sperm retrieval

Two couples gave birth to children with a genetic defect and then sue the fertility clinic

Two couples that were clients of a fertility clinic and who gave birth to children with a genetic defect called Fragile X, have filed a lawsuit against the fertility doctor and clinic for failing to screen the women who supplied the donor eggs for genetic defects. (New York Law Journal)

The parents of a child born with cystic fibrosis won a lawsuit against their fertility clinic for failing to perform a screening test to look for the genetic marker for cystic fibrosis before implanting the fertilized eggs into the woman. (Fertility and Infertility Research Portal)

There are other examples of a sperm bank implanting the wrong embryo into the wrong woman’s body, a lab losing a cancer survivor’s eggs, and a facility inadequately screening donor sperm. . A man who was diagnosed with testicular cancer, managed to obtain a sperm sample, and placed it in the care of a sperm bank while he underwent cancer treatment. His sample was destroyed, and he was unable to produce another sample.

These kinds of mistakes happen rarely, but it only takes one mistake like this to ruin a family’s hopes for a child.

A Columbia Law Review essay on reproductive negligence reports that, “These errors go virtually unchecked in a profession that operates free of meaningful regulation. Private remedies meanwhile treat reproductive negligence more as trifle than tragedy. Courts do not deny that specialists are to blame for botching vasectomies or misimplanting embryos. But in the absence of property loss or physical injury, existing law provides little basis to recognize disrupted family planning as a harm worthy of protection.”

Couples or individuals who have suffered injury because of the preventable errors of a fertility specialist or fertility clinic may be able to file a lawsuit against those responsible.

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