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Abstract

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation facilities throughout the United States. As the use of cryopreservation increases, so too does the possibility that stored reproductive material will be lost or destroyed. Recently, over 4,000 cryopreserved human embryos inadvertently were destroyed at University Hospitals Fertility Clinic in Ohio, and 3,500 eggs and embryos were destroyed when a cryopreservation tank recently malfunctioned at a fertility clinic in California. When reproductive material is lost or destroyed, the aspiring parents’ primary harm is emotional; it is non-pecuniary in nature. The emotional harm is particularly extreme in cases where the loss destroys a couple’s only hope of becoming parents. Despite the severity of the emotional harm suffered due to the loss, aspiring parents often are left without a clear legal basis to recover emotional disturbance damages.

Although emotional disturbance damages are rarely awarded for breach of contract, the article explains why such awards are justified based on the current trend in contract law, as exemplified by Restatement (Second) of Contracts section 353 and posits that clinics and ART professionals are aware at the time of contracting that emotional disturbance is particularly likely in the event of a breach. Scholars have noted that tort damages for emotional harm often are unavailable when reproductive material is lost or destroyed, because the emotional harm is not parasitic to a physical injury, nor can aspiring parents overcome the traditional barriers to NIED recovery because they neither were in the “zone of danger” nor were they bystanders at the time of loss. Therefore, for aspiring parents who reside in traditional barrier jurisdictions, breach of contract damages may represent their only hope to recover for emotional harm. This article posits that ART clinics and professionals have actual or constructive knowledge of plaintiffs’ particular reason for storing reproductive material – namely, to achieve a later pregnancy – at the time of contracting, so as to support consequential damages for emotional disturbance. This knowledge of the contract’s purpose, coupled with the nature of the transaction and the surrounding circumstances, put ART clinics and professionals on notice at the time of contracting that emotional disturbance is particularly likely to result from a breach. The article also posits that typical broad, sweeping exculpatory clauses contained in cryopreservation agreements that attempt to negate all liability for freezing and storage of reproductive material, including negligence liability, should not be enforced because such clauses render the agreement illusory and contravene public policy.

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