Fragile embryos symbolizing loss and justice in fertility treatments.

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

"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.

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ART Data and Embryo Loss

The CDC reports that U.S. fertility clinics document and verify assisted reproductive technology (ART) cycles and their outcomes each calendar year. ART includes treatments in which eggs or embryos are handled, with in vitro fertilization (IVF) identified as its main type. The CDC's 2021 national report drew on verified outcome data from 453 fertility clinics, while research has also examined the number of viable embryos lost during ART, particularly IVF.

Established Treatment, Uneven Outcomes

Fertility treatment commonly involves established clinical protocols such as IVF and other forms of ART, but outcomes can vary substantially between patients and treatment cycles. These approaches may involve significant physical, emotional, financial, and ethical burdens. Their limitations mean that treatment decisions generally require individualized counseling, realistic expectations, and careful consideration of risks and alternatives.

From Discovery to Clinical IVF

The development of IVF followed numerous discoveries and inventions rather than a single breakthrough. IVF history records the first birth in a nonhuman mammal resulting from IVF in 1959, followed by the birth of Louise Brown in 1978, recognized as the world's first baby conceived through IVF. Over the following four decades, reproductive medicine developed from experimental research into a stimulated clinical treatment and expanded through continuing medical advances.

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.
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An Evolving Evidence Base

Recent fertility research continues to review treatment effectiveness, patient outcomes, and the medical and ethical issues surrounding ART. Reviews may bring together evidence on changing protocols, embryo handling, genetic assessment, and patient support, but their conclusions can depend on study design and the populations examined. Patients and policymakers therefore benefit from treating emerging findings as an evolving evidence base rather than as guarantees of success.

Limits Behind the Promise

The promise of fertility treatment does not eliminate the possibility of failed cycles, unsuccessful implantation, embryo loss, or other adverse outcomes. Supporters may emphasize medical progress and expanding options, while critics may focus on cost, uncertainty, unequal access, and the emotional consequences of repeated treatment. A balanced assessment should recognize both the potential benefits of ART and the fact that no clinic or protocol can guarantee a live birth.

Comparing Clinics and Alternatives

Comparing fertility clinics requires attention to treatment services, reported success rates, average chances, and the quality of patient care. Guides for intended parents also recommend using structured comparison tools and asking targeted questions, particularly when considering donor IVF or surrogacy in the United States. Separate 2026 comparisons identify alternatives and platforms including eIVF, MediTEX IVF, iClinic, Ovation Fertility, Repromed, Embryoscope, PracticeSuite, Kareo (Tebra), and custom Devaims builds, illustrating that comparison may involve both clinical providers and operational technology.

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.

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Accountability and Informed Choice

Taken together, fertility care presents both meaningful medical possibilities and serious limits. A responsible evaluation should distinguish documented outcomes from predictions, explain uncertainty clearly, and account for the patient's physical, emotional, and financial circumstances. Expert commentary would therefore be most useful when it connects clinical evidence with informed consent, transparent communication, and meaningful accountability.

Growth, Technology, and Regulation

Forecasts describe the U.S. fertility-clinic sector through 2030 as likely to experience steady growth, driven by demand and improved access. Emerging discussions highlight genetic screening, artificial intelligence, affordability, inclusivity, and the ethical and regulatory questions accompanying those developments. Industry analysis also points to rising investment and changing organizational approaches to funding and executing fertility-care initiatives, although market projections should be treated as forecasts rather than certainties.

Beyond the Procedure

The broader impact of infertility treatment extends beyond clinical outcomes to maternal and neonatal health, treatment burden, and psychological distress. A review of modern infertility treatment identifies treatment duration, cycle history, and physical side effects as important drivers of distress, with psychosocial care and patient counseling influencing how those burdens are experienced. Research on women's experiences likewise reports effects on mental, emotional, sexual, and spiritual well-being, including prevalent anxiety and depression.

Patients Behind the Statistics

Fertility treatment is experienced by people navigating uncertainty, repeated decisions, and the possibility of loss. The human consequences may include anxiety, grief, financial pressure, and strain on relationships, particularly when treatment does not produce the hoped-for outcome. Patient-centered care should therefore combine technical competence with clear communication, emotional support, and respect for individual values.

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.

The paper's legal reading of the Cleveland clinic failure

SettingUniversity Hospitals Fertility Center in Cleveland, Ohio[1]
FundingNone[1]
Conflicts of interestProf. Fox served as a consultant for counsel representing class-action plaintiffs whose eggs and embryos were lost at the Pacific Fertility Clinic in San Francisco, California.[1]
Times cited4[1]

How the legal record compares with later evidence

A later review counted 131 cases among 398,256 reported embryo-thaw procedures, describing the incidence as much less than 1% while noting the case-by-case impact.[2]

What the evidence says about loss and legal exposure

The figures place severe storage incidents against a much larger pool of embryo-thaw procedures: uncommon events in that comparison can still carry substantial consequences for affected patients.[2]

Questions left by the incident and case record

  • How might pending inquests affect the account of the Ohio center’s compliance and responsibility?[1]
  • How often do storage failures occur beyond the publicly visible cases represented in later lawsuit reviews?[2]

Questions readers may have about storage risk

Can a storage tank fail even when maintenance guidance is followed?

Yes. The cited committee opinion says any cryostorage tank can fail catastrophically despite adherence to quality-control and maintenance recommendations.[3]

About this Article -

Written with AI assistance from published research, and reviewed by the Mystum team. 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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