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Causes of Action for Loss of Cryopreserved Embryos
In last month's issue, we discussed how suits seeking damages for the wrongful deaths of cryopreserved pre-embryos are, at present, generally doomed to failure. Unless state legislatures change the definitions of the word “person” in their wrongful death statutes, courts in the several states are going to remain reluctant to extend the availability of wrongful death recovery to what are, arguably, merely potential “persons.” The outcome on this issue in our illustrative case, Jeter v. Mayo Clinic Arizona, 2005 Ariz. App. LEXIS 153 (10/27/05), proved no exception to the rule. However, the Jeters — who had had their cryopreserved pre-embryos apparently lost by the clinic charged with preserving them — did prevail in their fight to reinstate their suit on several other grounds. Although based on application of Arizona law, the Jeters' successful arguments on appeal could be used, with some tweaking, in other jurisdictions when reproductive assistance caregivers are accused of failing to act with proper care.
Negligent Loss or Destruction of Pre-Embryos
The Jeters asked the appellate court to recognize a common-law claim for the negligent loss or destruction of their pre-embryos based both on their right to control disposition of them and on the Mayo Clinic's undertaking of a duty of care. In support of their argument, they relied on two Restatement provisions and on cases from other jurisdictions. Those cases, however, the court found inapposite because they involved mothers who were permitted to recover, as part of their own personal injury claims, emotional distress damages for loss of fetuses they were carrying in utero. Mrs. Jeter had not suffered a personal injury in conjunction with the loss of the pre-embryos and was not carrying them at the time they were lost.
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