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.