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January 28, 2022 Assisted Reproductive Technologies

The Intersection of ART Law and Tort Law

By: Natalie Kanellis

Battery was one of the first torts we studied in law school.  It is a common law tort that has remained largely unchanged.  Battery is broadly defined as intentional harmful or offensive touching of another.  Restatement (Second) of Torts § 13. Battery concepts easily transitioned into the medical field, as patients have the right not to suffer bodily violation without their consent.  Performance of an unauthorized procedure constitutes medical battery.  Shuler v. Garrett, 743 F.3d 170 (6th Cir. 2014).   Medical battery is distinct from a medical malpractice claim, as battery generally involves no consent and malpractice claims focus on lack of informed consent. Id.  As attorneys in the field of Assisted Reproduction Rights, replete with medical procedures, we can easily understand how battery law is relevant to our practice.    

The Federal District Court in Florida recently examined a claim of battery in the context of an embryo transfer.  Poe v. Doe, Case No. 19-23600-CIV-WILLIAMS (S.D. Fla. Nov. 24, 2020). In that case, the gestational surrogate entered in a surrogacy agreement with Defendant Jane Doe, and her then husband.  Prior to agreeing to be their surrogate, the Plaintiff “made extensive efforts to personally get to know”  Jane Doe and her then husband, including an in-person meeting at her home in Tennessee.  Id. The surrogate felt comfortable with Jane Doe and her husband and entered into a surrogacy agreement with them, identifying Jane Doe as “Intended Mother” and Jane Doe’s husband as “Intended Father.”  The surrogacy agreement specifically stated that the embryos would be created by the Intended Mother’s eggs and the Intended Father’s sperm.  Id.  Plaintiff gave birth to a baby in 2011 and immediately handed the baby over to Jane Doe and her husband. 

It was not until 2019 that Plaintiff learned that the embryo implanted was not made up of the Intended Parents’ biology but was made of the eggs of Intended Mother and the sperm of a third party (John Doe).   The surrogate sued Intended Mother and John Doe. Plaintiff alleged that she did not consent “to being involved with John Doe, let alone carry his child” and “had never even met John Doe.”  As a result, Plaintiff asserts she has experienced “stress, anxiety, mental anguish, and trauma,” that Defendants “caus[ed] her to be battered physically and emotionally,” and that she has suffered from, and has been diagnosed with, post-traumatic stress disorder.” Id.

The Federal District Court held that the surrogate’s allegations that the embryo make-up used for the transfer was not what she agreed to in the Surrogacy Agreement, stated a claim of battery. Id.   Interestingly, the Defendants did not challenge that their conduct would satisfy the elements of battery.  Rather, Defendants focused on the argument that the surrogacy agreement was a contract, that the terms of the contract controlled any liability, and that Plaintiff could not proceed with a separate tort action.  The Federal District Court rejected the Defendants’ argument as “missing the mark,”  explaining that “Plaintiff's tort claims do not rest on the failure to use Jane Doe's husband's sperm, but rather on the use of John Doe's sperm without her knowledge or consent.” Id.

Granted the Poe case has unusual and rather dramatic underlying facts.  According to Plaintiff, the Intended Mother and John Doe were involved in a scheme to substitute John Doe’s sperm for her husband’s sperm to create the embryos.  The husband was unaware until whatever events spurred a custody dispute in 2019.  (Plaintiffs’ Second Amended Complaint).  But the underlying holding of the Federal District Court:  that the surrogate has a claim when the make-up of the embryo transferred is different than the make-up of the embryo to which she agreed is important to us all. Situations often come up where Intended Parents change to a donor egg or donor sperm during the journey.  This might be predicted, perhaps when Intended Parents start their journey with one or two embryos and understand they may look to donor eggs if their existing embryos do not result in pregnancy.  Or it could be caused by unexpected events:  mistakes by the clinic in thawing embryos, for example.   It is easy to imagine situations in which Intended Parents create new embryos with a donor egg or sperm and do not realize the significance of doing so or, for one reason or another, the make-up of the new embryo is not communicated properly from the agency to the attorneys.  The clinic may not appreciate that the legal clearance was sent before the change in embryos and may not apply to a transfer of an embryo created with different biology. The potential scenarios are infinite.   

The Poe case is in the pretrial stages and is progressing through discovery.  We can continue to follow this case in the event it goes to trial.  In the meantime, attorneys may want to give enhanced attention to the information they receive from the agency and clinic about embryos and take additional steps to ensure that the surrogate and intended parents set out the specifics of the embryo biology in the carrier agreements and provide, when appropriate, for the agreement to include the understanding that donor eggs or donor sperm may be used during the course of the surrogacy journey. Legal clearance can be precise as well so that the clinic understands that it may need to seek additional legal clearance if the make-up of the embryos the clinic plans to transfer is different than that contemplated in the carrier agreement and legal clearance.

You would not think that ART attorneys and the tort of battery have much in common.  But, in fact, they are both focused on protecting the dignity of the person. A primary tenant of ART law is to respect the autonomy and dignity of all parties involved in family making.  “Battery” is often defined in terms of protecting a person’s dignity.  The definition of “offensive contact is bodily contact that “offends a reasonable sense of personal dignity.”  Restatement (Second) of Torts § 19.   It is  perhaps reassuring to understand that by continuing to take steps we take as ART attorneys to promote the dignity of the parties, we are also shielding our clients from tort claims. 

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Natalie A. Kanellis

Esq., Boston, MA

Senior Counsel, Circle Surrogacy/Weltman Law