The road to parenthood is a unique and deeply personal journey for every individual or couple. And while many are fortunate enough to conceive naturally, unfortunately for others it is only possible through alternative methods such as the IVF process. For those couples or individuals, the road to parenthood is paved with uncertainty and heartache. Becoming a parent through an IVF process proves to add more layers of worry, anxiety and emotional distress.
Now imagine entrusting your chosen specialist with your future only to have your dreams turn into your worst nightmare. Unfortunately, for some this is their reality after a fertility specialist, or its staff destroy or discard priceless embryos. To further the agony, under years of Florida law, embryos have been considered property, like a car for example, and because a person has not been ablet o make a claim for negligent infliction of emotional distress for the loss of property, a person could not claim emotion damage to embryos. Now, however, thanks to the argument made by Attorney Andrew Rader, changes are being ushered into that law.
Andrew Rader represents a couple who, through the neglect of their doctor, had priceless, viable embryos accidentally destroyed. He then brought suit against the clinic claiming negligent infliction of emotional distress.
Not surprisingly, and pursuant to Florida law, the doctor argued that no claim could be made, because embryos are property, not people. The doctor also argued that the case violated Florida’s “impact rule”, which holds that if you are not the injured person, or within the “zone of danger” of a terrible event, you cannot recover for emotional harm (the impact rule is intended to prevent people from claiming unfounded and vague emotional injuries). Additionally, the at-fault doctor argued that the couple were not harmed personally and that, in any event, loss of an embryo is loss of property, and likened the case loss of a dog (which is considered property)- painful, but still not a person.
Mr. Rader pressed forward contending that as fertilized eggs these embryos essentially were this couple’s children and that if ever there was a need for an exception to the property and impact rules, this was it. Mr. Rader argued,
An embryo is far more than property. It is far more profound a loss than that of a dog. An embryo is a living being in suspended animation waiting to be born. The claim of the Defendants, who peddle in the love of children and hope of would-be parents, is that they are more akin to an ASPCA shelter than a fertility clinic. This belies the disingenuousness of Defendants position.
What can be more foreseeable and graver than the loss of potential children? Practically nothing, and from the standpoint of the Defendants, it was entirely foreseeable and likely, if not a certainty, that a couple who has gone through several rounds of in-vitro fertilization and embryo storage would experience severe emotional distress and mental anguish if the person and/or entity charged with storing those embryos negligently discarded them and deprived that couple of its ability to give birth to a child.
After hearing legal argument the judge wrote a lengthy order in which he agreed with Mr. Rader, holding that
“Public policy dictates that the impact rule should not be applied where the alleged emotional injuries were highly likely to occur as a result of medical providers destroying embryos Plaintiffs intended to use one day for the birth of their children. To hold otherwise, to apply the impact rule and bar Plaintiffs’ claims for emotional distress, while allowing such claims to proceed for other highly personal and emotional torts such as defamation, invasion of privacy and wrongful birth, would be inconsistent and run afoul of the intended spirit of the impact doctrine. Therefore, this Court denies Defendants’ Motion to Dismiss Counts 3 and 4 and allows these Counts to proceed on the merits.”
While nothing may bring these clients solace after suffering such a devastating loss, there is some justice in knowing that, because of their own pursuit of holding the doctor accountable, future hopeful parents may be spared the crippling heartache of such carelessness. This judge’s order stands as a glimmer of hope and sheds much needed light and attention on a very serious and emotional misjustice suffered at the hands of what should be a trusted professional.
If you have lost an embryo as a result of a doctor or clinic’s negligence, call Florida Board-Certified Trial Lawyer, Andrew Rader at 954-913-2273 or go to his website at www.RaderLawGroup.com.