“I’d Like My Eggs Frozen”: Negligent Emotional Distress Compensation for Lost Frozen Human Eggs

Abstract

Assisted Reproductive Technology continues to advance and has already assisted thousands in childbearing. In 2012, the American Society for Reproductive Medicine announced that oocyte cryopreservation, or egg freezing, a form of Assisted Reproductive Technology, was no longer considered an experimental procedure. Egg freezing is growing significantly in popularity and, as a result, fertility clinics continue to prosper as more women seek their services. For many women, egg freezing gives them hope of motherhood beyond the typical childbearing age. For some, this procedure can preserve their fertility following invasive medical procedures that weaken their eggs’ viability. In March 2018, two tank failures occurred in San Francisco and Cleveland. As a result, thousands of eggs thawed and some women lost any chance they had at having biological children. In response, some women have sought legal recourse for their loss. This Note explores how reproductive material has been classified in property law and the overall limitations of emotional distress damages for property loss. The Note also discusses how eggs are most likely to be categorized as property and, as a result, how negligence damages for property loss are likely to be limited to the fair market value of the lost eggs. Finally, this Note argues that emotional distress damages for lost frozen eggs should be available to women for this property loss.