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Causes of Action for Loss of Cryopreserved Embryos

By Janice G. Inman

There has been much discussion of the ethics and liability issues created by recent advances in reproductive science. While fertility treatments allow couples that might otherwise not be able to conceive or carry a baby to term create much-wanted families, fertility clinics and the health care professionals working in them are dealing with a highly emotional issue. When patients don't get the results they wanted — particularly when mistakes are made — the chances of being sued run high.

One aspect of assisted fertility that has caused considerable debate of late concerns the consequences for mishandling eggs and fertilized embryos. Is the embryo a “person,” in the sense that its destruction can be termed a wrongful death, or is it something less? If the embryo is not a person, what other causes of action will lie when a fertilized egg is lost or destroyed? Several jurisdictions have grappled with the issue and have come to different conclusions. One case, Jeter v. Mayo Clinic Arizona, 2005 Ariz. App. LEXIS 153 (10/27/05), recently dealt with these questions and found that an unimplanted fertilized embryo, while not a person, was indeed an object whose lose could be redressed through the courts.

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