IVF

[Jonathan Buhacoff]

Proposal:

Liability of clinics providing IVF treatments should be clearly defined based on the situation:

In case of failure to delivery children but without any malpractice by the clinic, it should be up to the clinic’s policy whether they offer their clients money back or not.

If clients have reason to believe that negligence or worse happened at the clinic which resulted in failure, clients may sue the clinic for damages up to the total cost of treatment for the failure regardless of what the money back policy is (because money back policies don’t apply in cases of wrong-doing by the vendor).

In case of medical malpractice such as injuring the patient during a routine operation, existing laws should apply about the practitioner’s or clinic’s liability.

In case of ethical breaches which are unique to fertility treatments, such as a male doctor using his own sperm or a female doctor using her own eggs, or the sperm or eggs of any personal or business associate of the doctor, or the sperm or eggs of someone who paid for them to be used, without disclosing the extraordinary involvement to the patient, and especially if such extraordinary involvement replaces the patient’s selected donor, and especially if the patient’s selected donor was the patient’s partner, such ethical breaches are a violation of rights and must have severe consequences for the perpetrator.

Intent:

To achieve a balance between patient expectations and the reality of fertility practice, in which not all efforts succeed. If we allow too many damages to be paid to patients, or if we criminalize anything less than perfection, practitioners and clinics will have to stop operating and won’t be able to help anyone else. On the other hand, practitioners and clinics do need to be accountable for negligence or malpractice.

Discussion:

It’s important to recognize that fertility treatment is possible because of many advances in science and technology by people who are trying to help, and that most fertility clinics and their staff have good intentions to help patients. If it were not for their efforts, people with fertility issues would either need to find different sex partners or not be able to have their own children at all. This means that when fertility treatment fails to produce children, the patients are usually no worse off than before except for the time and money spent on the treatment.

Any emotional suffering as a result of failure of treatment cannot be blamed on the staff (unless the staff did something unusual that would cause emotional suffering) because the patient would already have emotional suffering due to inability to produce children without the treatment. And if a patient believes they will suffer extra emotional suffering as a result of treatment failure than as a result of not even trying, fertility treatment is completely optional and in fact can be quite expensive so a person should not attempt it if they’re going to ignore the chance of failure and blame their emotional suffering on the staff. This isn’t to minimize the impact of emotional suffering on the patient, especially for a topic as important as having children — only to say that this is the burden of the patient and the patient’s support group.

The ethical breaches mentioned in the proposal are a violation of three rights. The right to consent, because when the doctor surreptitiously replaces the patient’s selected donor with the doctor’s own selection, it is an assault on the patient. The right to dignity, because the patient consented to a procedure with the patient’s selected donor, not the doctor’s selection — whether it’s tricking a male to provide sperm and then not using the male’s sperm, or tricking a female to provide an egg and not using the female’s egg, or inseminating with sperm not from the female’s selected donor or or impregnating a female with an embryo produced not with the female’s selected sperm and egg donors. The right to parental control, because when such unwanted donors result in a successful pregnancy, the doctor or clinic caused another person to reproduce without their consent — the person consented to reproduce with their selected donor, not with the doctor’s selection.

This discussion has been about liability in IVF treatments, but there are some people who advocate for prohibiting IVF treatments entirely. Infertility is a recognized medical condition and preventing someone from pursuing IVF treatment would violate their right to seek medical care. If the abortion proposal is accepted, any destruction of or damage to embryos would happen during a period in which the female would be allowed an abortion of an unwanted pregnancy anyway, except that in the case of IVF the pregnancy is wanted but the embryo was not viable or was an extra embryo created along with others but remaining in the possession of the clinic after a successful pregnancy was achieved with another embryo.

The right to life states that no person shall harm or kill a pregnant female’s unborn child except in defense, or law enforcement, or lawful military combat. The term “unborn child” means a child in utero, at any stage of development. It also refers to a child developing in an artificial uterus. It does not refer to any embryo that is waiting to be transferred to a uterus, nor any earlier stage of the embryo such as the sperm or eggs before fertilization. The difference is that an embryo in the uterus is on track to developing into a baby, whereas an embryo that is in storage is not on track to developing into a baby.

Paradoxically, people who attempt to prohibit IVF treatment to defend the non-existent right to life of the embryos that would be destroyed during or after the process, would achieve nothing because if IVF treatment is prohibited, those embryos would not even be created, and none of them would become successful pregnancies. If “pro-life” advocates get their way, people who have fertility issues that can be solved with IVF would not be able to get that treatment, resulting in less life. The position of prohibiting IVF treatment in an attempt to protect the right to life of something that wouldn’t exist without that treatment is a form of perfect solution fallacy, colloquially said as “the perfect is the enemy of the good” or “don’t throw the baby out with the bath water”.

Between 10% to 20% of known pregnancies result in miscarriage. It would be absurd to outlaw pregnancy and prevent the 80% to 90% of successful pregnancies in order to “protect” the right to life of the unborn children who end up in a miscarriage, because then there wouldn’t be any pregnancies or new children at all. People can be murdered with vehicles, weapons, ordinary objects, and even bare hands — it would be absurd to completely ban all vehicles, weapons, ordinary objects, and hands just because they can be used to murder people. We need to deter bad behavior and promote good behavior in all aspects of life, and IVF is only one more area in which we need to do that. We must criminalize abusive behavior and malpractice by fertility doctors, while allowing them and their patients to pursue creating more life in an ethical way, and limiting the liability to just the cost of the treatment except in extraordinary cases.

For example, there was a case in Alabama where three couples filed wrongful death lawsuits against a fertility clinic and hospital over the accidental destruction of their frozen embryos when someone opened the storage container. That person was not authorized to be in that area and the area should have been locked to prevent unauthorized entry, but wasn’t. In that case, the couples are right that they were injured by the negligence and failure of the staff to secure the embryos. There was not even a locked door to prevent the unauthorized person from opening the container. However, the judge in the case determined that the constitution and laws of Alabama at the time treated the loss of these embryos the same as the death of a person. There was no consideration (or at least it was not mentioned in any of the articles about the case) of whether the couples could produce more embryos. If they can produce more embryos, then according to the proposal here the facility must be liable for the cost of the lost embryos including all treatments and prescriptions, and in addition due to the negligence the facility would be liable to the couples for additional damages for the lost opportunity. If they cannot produce more embryos, the damages for the lost opportunity would be greater. The facilities should learn their lesson from this and ensure the embryo storage is accessible to authorized personnel only, but it wouldn’t cause them to stop offering the service completely. Their payouts to the plaintiffs would then fund the couple’s subsequent attempts to produce more embryos either at the same facility or or a different facility, with the extra compensation for opportunity cost helping to pay for the cost of travel and possibly maintaining two households for a year or two while they try again. In contrast to current Alabama law (2024), the proposed right to life clarifies that it only refers to an unborn child meaning in the uterus, and not to embryos in storage, or to eggs or sperm in storage.

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