Fragile embryos symbolizing loss and justice in fertility treatments.

Losing Hope: When Fertility Clinics Fail and the Quest for Justice

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Jordan Keane in Law & Justice December 2025 • 4 min read.

"Exploring the legal and ethical challenges of embryo loss in fertility treatments."


In March 2018, a devastating incident occurred at the University Hospitals Fertility Center in Cleveland, Ohio, where a liquid nitrogen storage tank malfunctioned, resulting in the loss of over 4,000 eggs and embryos from more than 950 patients. This event, attributed to human error, is not an isolated case, highlighting a troubling reality in reproductive healthcare: the unintentional discarding, destruction, or harm of reproductive materials.

The absence of mandatory reporting systems for such 'never events,' akin to those in other medical fields like wrong-site surgery, obscures the true incidence of professional lapses in reproductive care across the United States. This lack of transparency leaves patients vulnerable and undermines efforts to improve standards and prevent future incidents.

As more than 70 aggrieved patients have filed lawsuits, including a notable case where plaintiffs seek legal status for their embryos, the legal landscape becomes increasingly complex. This article delves into the intricate legal issues arising from these cases, exploring the implications for current and future legal battles, and examining the broader impact on reproductive rights.

Navigating the Legal Maze: Theories and Challenges

Fragile embryos symbolizing loss and justice in fertility treatments.

When pursuing legal recourse for the loss of embryos, several theories have been tried, each presenting unique challenges. These include breach of contract, loss of property, medical malpractice, and negligent infliction of emotional distress.

Breach of Contract: Fertility clinics can face lawsuits for violating agreements related to the storage of gametes or embryos. However, many clinics include waivers in their contracts that excuse them from negligence liability for storage failures. Courts often uphold these exculpatory clauses, viewing fertility treatment as more 'elective' than 'essential,' a stance less common in other areas of medical practice.

  • Loss of Property: Courts have generally resisted classifying frozen gametes or embryos as property, complicating efforts to sue for lost property. Valuing the emotional distress and thwarted family plans in terms of damaged possessions also poses significant challenges.
  • Medical Malpractice and Negligent Infliction of Emotional Distress: Traditional medical malpractice claims require proof of bodily or economic harm, which is often lacking in cases involving the discarding or destruction of gametes or embryos. Furthermore, proving negligent infliction of emotional distress can be difficult, as many jurisdictions require plaintiffs to have been bystanders to a physical threat, a condition not typically met in these cases.
Despite these legal limitations, some plaintiffs have sought to redefine the legal status of lost embryos, as seen in the Pennimans' case, where they argue for wrongful death claims, asserting that negligence led to the death of 'persons' under Ohio law. This approach, while aiming to provide a path to legal recourse, raises complex questions about the future of reproductive rights.

The Path Forward: Balancing Rights and Responsibilities

Allowing wrongful death suits for lost embryos could have far-reaching consequences, potentially impacting abortion access, stem cell research, and in vitro fertilization practices. It is critical to balance the rights of those seeking to reproduce with the broader implications for reproductive freedom.

Given the legal complexities and the variability in court decisions, state legislatures may need to enact statutes that address the negligent loss of gametes and embryos without endorsing personhood theories. Such legislation could clarify legal recourse for affected patients while safeguarding reproductive rights.

Additionally, there is a need for greater transparency and regulation within the fertility industry. Facilities should enhance patient warnings about the risks of unintended embryo loss, and legislators should consider the apportionment of liability between physicians and storage facilities to ensure accountability and improve patient care.

About this Article -

This article was crafted using a human-AI hybrid and collaborative approach. AI assisted our team with initial drafting, research insights, identifying key questions, and image generation. Our human editors guided topic selection, defined the angle, structured the content, ensured factual accuracy and relevance, refined the tone, and conducted thorough editing to deliver helpful, high-quality information.See our About page for more information.

This article is based on research published under:

DOI-LINK: 10.7326/m18-2483, Alternate LINK

Title: Losing Embryos, Finding Justice: Life, Liberty, And The Pursuit Of Personhood

Subject: General Medicine

Journal: Annals of Internal Medicine

Publisher: American College of Physicians

Authors: I. Glenn Cohen, Dov Fox, Eli Y. Adashi

Published: 2018-11-20

Everything You Need To Know

1

What legal options are available when a fertility clinic experiences failures resulting in the loss of eggs or embryos, and how effective are they?

When fertility clinics fail, legal recourse can be pursued through breach of contract claims if clinics violate storage agreements for gametes or embryos. However, many contracts contain waivers excusing negligence liability, which courts often uphold. This is due to fertility treatment often being viewed as 'elective' rather than 'essential'. This differs from other areas of medical practice where such waivers may not be as readily accepted.

2

Why is it difficult to sue for 'loss of property' when gametes or embryos are lost or damaged at a fertility clinic?

Courts have generally been hesitant to classify frozen gametes or embryos as property. This complicates lawsuits seeking damages for lost property, as it's difficult to assign monetary value to emotional distress and thwarted family plans in terms of damaged possessions. The unique nature of reproductive materials poses valuation challenges.

3

What are the challenges in pursuing medical malpractice or emotional distress claims when a fertility clinic's error leads to the loss of reproductive material?

Traditional medical malpractice claims typically require proof of bodily or economic harm, which is often lacking when gametes or embryos are discarded or destroyed. Similarly, proving negligent infliction of emotional distress can be difficult because many jurisdictions require plaintiffs to have been bystanders to a physical threat, a condition not usually met in these situations. The absence of physical harm presents a legal hurdle.

4

What are the potential implications of allowing wrongful death lawsuits for lost embryos in the context of reproductive rights?

Allowing wrongful death suits for lost embryos, as seen in the Pennimans' case, could have significant consequences. It could impact abortion access, stem cell research, and in vitro fertilization practices. Balancing the rights of individuals seeking to reproduce with the broader implications for reproductive freedom is crucial, demanding careful consideration of the legal and ethical ramifications.

5

Why is the absence of mandatory reporting systems for fertility clinic errors a problem, and what impact does it have on patient safety and future prevention?

Currently, there isn't a mandatory reporting system for 'never events,' which are professional lapses that lead to the loss of eggs or embryos during fertility treatments, unlike the reporting requirements in other medical fields. This lack of transparency obscures the true frequency of such incidents across the United States. This gap undermines the ability to improve standards and prevent future failures in reproductive care.

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