Damage and destruction of frozen eggs or embryos: Can you claim for negligence or harm?

Holding hands
3 minute read

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It has been announced that more than 100 women who have had eggs and embryos frozen at a Guys and St Thomas Hospital in London have been told that they may have been damaged due to an error by the Hospital.

This is sadly a familiar story to us at Enable Law. We acted for several women whose embryos were destroyed in seemingly similar circumstances in Plymouth in 2019. Claire Leslie of Enable Law who represented these women has said: “It is sad to see that lessons are still not being learned and the impact of these failures have wide reaching impact.”

In the London clinic cases it appears that there may have been a mistake in using faulty freezing solutions back in September and October 2022. In the Plymouth cases, there was an unintentional loss of power to the incubators storing the embryos resulting in the devastating loss of those embryos.

In the Plymouth cases, the Trust accepted that the loss of embryos was a result of negligence and that the patients would suffer psychological distress and potentially have to undergo additional difficult and psychologically challenging procedures. The impact on these couples was profound, not only coping with having a failed cycle due to an error by the hospital but having to always wonder if that was the cycle that would have been successful.

It appears that some of those affected by the loss at the London clinic may have been patients who have had cancer. Often cancer patients chose to store their eggs or embryos before their treatment started. This is to preserve the option to have biological children once their treatment is complete, because the cancer treatment can cause infertility.

At Enable Law we acted for a group of men in 2009 in the ground-breaking case of Yearworth, where our clients had all been diagnosed with cancer and were advised to freeze their sperm as a way to ensure that they had a chance to conceive a child after their cancer treatment. An NHS equipment failure led to the freezer thawing and their sperm was effectively destroyed. This lost them the chance to conceive a biological child of their own.

Although the Defendant Trust admitted they were negligent as they failed to preserve the Claimant’s sperm samples, they would not agree that it amounted to a personal injury and denied liability when the claims were brought. However, Enable Law fought the case, and took the claims to the Court of Appeal where the Court found that the destruction of the sperm amounted to damage to property and the Claimants were able to recover compensation as a result.

Enable Law has significant experience in this complex area of law, and we understand how difficult it is for patients to go through such a loss. Whilst this news will be devastating to all those involved, there will be some patients who have thankfully been able to retain their fertility in any event, and are able to go on and have biological children despite loss of their frozen eggs or embryos under these circumstances. However, there will be some patients who will be devastated to learn of the news from the London clinic as this could have catastrophic impact on their ability to have children in the future.

Enable Law can help investigate what has happened, and where appropriate seek compensation to assist in future fertility treatment.

Claire Leslie of Enable Law, was involved in both the destruction of sperm cases in 2009, and represented the women in the Plymouth Embryo loss claims in 2019, said: It is sad to read that these errors are continuing to occur time and time again. Those who have had their eggs, sperm or embryos stored have not taken this decision lightly, and it is usually due to them overcoming difficult challenges in their lives. The loss of something so precious having put their trust in others is devastating, and the common theme I hear from my clients is how hard it is to get past the not knowing as to whether those were the embryos or eggs which would have resulted in a child of their own. It is an incredibly sad outcome for all involved.”

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