Fodder for the pro-lifers

Posted to AzCentral:

Court: People can sue when frozen embryos are lost
Carol Sowers
The Arizona Republic
Dec. 7, 2005 04:59 PM

Belinda Jeter was lying on a gurney in a Scottsdale fertility clinic and eager to become pregnant when her doctor delivered the bad news.Five of her 10 chances to have a child - chances that cost her and her husband $25,000 - were gone.

An hour before the doctor was to implant Belinda's fertilized embryos, he discovered that half were missing from their thin, glass storage straws.

The Goodyear couple sued the Mayo Clinic of Scottsdale, which had harvested and fertilized the eggs and stored the embryos. The couple accused Mayo of losing their embryos. While Mayo insists there is no evidence of wrongdoing, the Jeters case has resulted in a recent precedent-setting opinion by the Arizona Court of Appeals that allows couples for the first time to collect damages from fertility clinics that lose or destroy embryos.

In a 2003 report Rand, a non-profit research institution, expected to find that 200,000 embryos had been preserved in the U.S. since the 1970s, but discovered double the number.

The U.S. Centers for Disease Control reported fertility clinics nationwide performed 115,000 in vitro fertilizations in 2002, producing 33,141 children. The average cost is $15,000.

As people increasingly freeze embryos, the ruling paves the way for more lawsuits like the Jeter's. But it also raises the question of how courts and juries can decide the monetary value of a frozen embryo.

"How do you assess the fair market value of individual embryos?" asks Geoffrey Trachtenberg, the Jeter's lawyer. "It is like telling you the fair market value of your newborn child. That's a concept we don't assign to people."

Struggling to conceive

Belinda and William Jeter had tried for a year to conceive a child. In 2001 they turned to the Mayo Clinic in Scottsdale.

The Jeters spent $25,000 at the Mayo Clinic, which harvested and fertilized 22 eggs. The clinic tried twice to implant them. Neither procedure produced child.

So the Jeters went to another Scottsdale clinic, carrying what they thought were their remaining 10 embryos in a rented nitrogen tank to keep them frozen.

When Belinda learned that five of those embryos were missing, she said she was "heart sick."

Maybe they had never been frozen and preserved. Maybe they had been implanted in another woman who would give birth to the Jeter's child.

Barry Halpern, Mayo's lawyer, said Mayo does not know what happened to the embryos after they left its clinic.

"Mrs. Jeter took responsibility for the embryos," he said. "Mayo no longer had capacity to control the environment in which the embryos were stored."

But something good has come out of this. After spending another $5,000 for a third implant, one of the surviving embryos produced Zoe, the Jeter's 3-year-olddaughter.

But losing five embryos, Belinda said, eliminated any realistic chance that she and her husband will ever have another child. Belinda, 29, an obstetrical nurse, said she does not want to repeat the grueling process of having her eggs harvested and implanted.

In the couple's June 2003 lawsuit, they claimed among other remedies that the loss of their embryos was covered under the state's "wrongful death act."

A Maricopa County Superior Court judge tossed the case, agreeing with Mayo that the wrongful death act applies only to "viable fetuses outside the womb."

The Jeters appealed.

The appellate court agreed that the wrongful death statute did not protect the fertilized eggs. But in its Oct. 27 ruling, the court allowed the couple to sue for what amounts to the loss of personal property, and sent the case back to superior court.

The judges said the fertilized eggs deserve "special respect," and said Mayo could be held accountable "for any (alleged) physical or economic harm."

Dr. Carolyn Gerster, a Scottsdale internist and head of Arizona Right to Life, criticized the court. She said describing embryos "as things is degrading and devalues human life."

Although the Arizona appeals court opinion could be cited by couples in other states, Trachtenberg acknowledges that claims for mishandled embryos will be rare. The Rand study shows that only a fraction of the nations 400,000 frozen embryos are discarded.

Still, Trachtenberg said, "clinics have to be accountable."

Another day in court

Fortified by the appeals court ruling, Trachtenberg said he plans to return to the superior court to ask a judge to allow the Jeters to sue for the loss of their property.

No trial dates have been set.

If the suit re-emerges, Halpern said the Mayo will defend it.

"We expect to win," he said, "and show that all of these allegations are groundless."

Belinda is itching for her day in court.

"It would be nice to get in front of a jury and tell them that this is a big deal.

"There is," she said. "a lot of suffering."

I have yet to have an overwhleming drive to spend tens of thousands of dollars (they spend $30K) to try and procreate. Honestly, if I had trouble getting pregnant, it's natures way of population control. But the fact that this couple spent a lot of money for something that was lost, is worthy of at least compensation for the cost to produce the embryos. But I would not allow for any more damages than that (ie: potential income from their life).

The most troubling thing about the article is that fertilized eggs deserve special respect. It's property, and if lost, should be compensated.