Reproductive Genetics in the Courts
Jan 11, 2018
Author: Susan Crockin, J.D.
Origin: ASRM News January 2018
Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.
Singapore Court Identifies Claim for “Loss of Genetic Affinity”
Singapore’s highest court has identified a new civil claim for gamete mix-ups, loss of “genetic affinity,” and awarded a married couple monetary damages for their clinic’s error in using donor sperm instead of the husband’s during IVF treatment. The court awarded a somewhat arbitrary award of damages (30% of the healthy child’s rearing costs).
The married couple already had one child through IVF, and had returned to the Thomson Medical center for a second child. When that child was born in 2010, the parents quickly noted discrepancies in hair and skin tone, blood type, and other features between the child and themselves, and a genetic test subsequently confirmed the sperm mix-up. The couple initially sued under theories of negligence and breach of contract, two theories that are often rejected when healthy children are born as the result of alleged injurious conduct, since courts are often uncomfortable assessing a financial amount of damages for a healthy child.
As has been the issue with numerous other genetic mix-up cases around the world, the Singapore Court of Appeal struggled with whether parents can establish a viable legal claim and damages for the birth of a healthy child, since general principles of law surrounding so-called “wrongful birth” type claims tend to only allow damages for the extraordinary costs of rearing a child with significant disabilities. These cases also can give rise to other theories of liability, including medical malpractice, but invariably meet judicial reluctance as to an award for money damages if a healthy child results.
The court’s ultimate finding that there was a legally actionable claim and damages rested on its conclusion that the mother had suffered anguish and stigma due to this “loss of genetic affinity”. The court noted that a desire to have a biologically related child is a “basic human impulse,’ whose “loss is keenly and deeply felt,” and that the couple’s interest in preserving what the court framed as “an intergenerational genetic link” is one the law should acknowledge. While the court also noted that it was not attempting to define what a family “should be” or “denigrate adoption,” the emphasis on the loss of the biological connection as opposed to the loss of a promised reproductive outcome, points to such a preference. An alternative rationale for recognizing the couple’s loss that would not have been susceptible to that interpretation could have been to characterize it as a loss of their reproductive expectations, with medical professionals thwarting their chosen, anticipated, and essentially promised path to parenthood.
The court’s award of damages also was unusual--rejecting a uniform amount, as it would not address individual fact patterns, the court awarded a “conventional sum” which it deemed to be 30% of the cost of raising the healthy child. It is unclear if the damages would have been a higher percentage if, for example, the child had no genetic relationship to either parent, or less if, for example, the child had not been a different race and thus the error so apparent.
The case highlights the challenges of both identifying new tort theories or fitting old tort laws such as “wrongful birth” or “wrongful conception” onto newer and newer ART procedures, and serves as a reminder of why courts have been so reluctant to identify legal theories and damages for what this author has sometimes collectively deemed “reproductive wrongs.”
Given the case arises out of Singapore, the court decision is not applicable precedent for any other country or state, and it remains to be seen whether other courts faced with genetic mix-ups resulting in healthy children follow a similar analysis, reject such claims altogether, or look to other rationales to award parents damages for their lost reproductive and family building expectations.
ACB v. Thomson Medical Pte Ltd and Others,  1 SLR 918.
NY Court Holds Statute of Limitations Starts at Birth, not Donation, in Claim Against Medical Professionals for Failure to Screen out Fragile X Egg Donor
A New York court was confronted with claims from two families whose donor egg conceived children were each found to have a Fragile X mutation after birth. The couples alleged that they were informed within a year of the children’s birth by Dr. Alan Cooperman of RMA New York, after he and the medical program learned of the donor’s status. New York has a 2½ year statute of limitations for medical malpractice, and the couples’ suits were brought more than 2½ years after the (fresh) donation and IVF, but less than 2½ years after the children’s births. Thus, the question of when the statute of limitations started to run determined whether the claims can go forward or not.
The defendant physician and IVF program moved to dismiss the case on the grounds that NY’s statute ran from the IVF procedure and the lawsuit was time-barred. The plaintiffs argued it ran from the date of birth, and was not time-barred.
According to the plaintiffs’ alleged facts, the court noted that Dr. Alan Copperman had told the two couples the donor had been tested "for all known genetic conditions for which testing is available, but did not state which conditions were included in the screening.” One couple gave birth to a singleton with the mutation, the other couple gave birth to twins with one having the mutation. The couples were claiming negligence in failing to screen for Fragile X or to notify them that this screening had not been done, and sought damages to cover the anticipated extraordinary expenses of caring for their disabled children. Courts have been more receptive to this type of claim and damages than those seeking damages for unexpected, but otherwise healthy, children as in the Singapore case above.
The NY Court ruled in favor of the parents, concluding the claim for recovery was a narrow one with “unique features,” allowed only to parents who could demonstrate extraordinary costs, not ordinary child rearing expenses or “psychic or emotional damages.” The court put the issue as follows:
“Plaintiffs allege that, by failing to take steps to detect that the egg donor was a carrier for Fragile X, and therefore that the embryo may have had the Fragile X trait, defendants left the parents in an uninformed state as to whether to avert pregnancy or birth and the associated costs resulting from birth. Given the nature of these allegations, it follows that until the alleged misconduct results in the birth of a child, there can be no extraordinary expenses claim… These expenses arise “as a consequence of the birth” [citation omitted], not just the conception.”
Both couples had been notified by the defendants of the Fragile X issue within a year after their children’s birth, but did not immediately sue. Typically, as is the case under New York law, a statute of limitations for a tort (a civil wrong) accrues at or runs from the date of the injury (with some exceptions for undiscoverable injuries). In this case, the court ruled NY’s statute, which requires a medical malpractice action be commenced within 2½ years of “the act, omission or failure complained of,” did not apply to these facts. Instead, the court identified the “legally recognizable injury” as the extraordinary expenses, which could not have been identified, and thus the case not brought, until birth, and thus ruled the statute of limitations should begin at birth.
There was a lengthy dissent by one judge. In his minority opinion, he stated that despite the majority’s “laudable” goal of allowing plaintiffs more time to assert a claim, it had created a new exception to New York’s medical malpractice statutory rule to the detriment of future parents. The dissent suggested the new rule will “unfairly and arbitrarily restrict the scope of recoverable damages,” for parents who discover a child’s disability prior to birth and incur expenses in preparation for the child’s anticipated needs, or for expenses incurred for a child who is stillborn--arguments the majority rejected.
Although the case involves only New York law, the court’s rationale and explanations may be of interest to other courts and in other circumstances. The case also raises questions of how a similar injury might be treated if the donated gametes were frozen and not used until much later, or if the donor screening and testing was performed by an outside entity, and not the intended parents’ medical program, both of which are becoming a standard of care in many areas involving egg donation.
B.F. v Reproductive Medicine Assoc. of N.Y., LLP, 2017 N.Y. LEXIS 3724, 2017 NY Slip Op 08712, 2017 WL 6375833
UK Surrogacy: Remedial Order to Permit Single Parents to Petition for Parental Orders
The UK has announced it is remediating a Human Fertilisation and Embryology Authority (HFEA) rule that had only permitted couples to request a “parental order” following a surrogacy arrangement. The rule had precluded single mothers or fathers from obtaining an order recognizing their sole parentage status, instead leaving a surrogate in place as the child’s legal mother. The announcement was made in November 2017, but had been expected since May 2016 when the Family Court ruled that the law was incompatible with the country’s Human Rights Act and the European Convention on Human Rights. The change resulted from a case brought by UK Solicitor, Natalie Gamble, a prior guest author of this column. Her accounting of the new rule and its anticipated impact can be found at the link below.
Colorado Supreme Court Hears Divorced Couple’s Frozen Embryo Dispute
On January 9, 2018, the Colorado Supreme Court heard oral arguments in yet another frozen embryo dispute between a divorcing couple. The former wife is appealing a Colorado intermediate court decision rejecting her claim to the embryos (for a discussion of the lower court’s ruling see Legally Speaking, June 2017).
She claims a right to procreate with the remaining embryos following the former couple’s two successful IVF procedures which resulted in their having three children (a singleton and twins), which her ex-husband opposes. The clinic documents do not make clear who should get the embryos in the event of a divorce. During the appeal process, the wife reported to the court that she is currently pregnant, which may weaken her arguments for the embryos.
Another frozen embryo dispute decision is also pending before the Georgia Supreme Court. The outcome of both cases will be reported in Legally Speaking after a decision is reached.
In Re Marriage of Rooks, CO S.Ct. (argued 1/9/18); 2016COA153 (prior Ct. Apps. Decision)