Negligence and embryo protection: a new frontier for medical law?

Abstract

In early 2012, many embryos were destroyed in a Roman hospital because of the breakdown of the freezing machine. In such cases the biological damage, for instance by ovarian hyperstimulation, and the pecuniary damage, i.e. the costs of treatments, can be compensated if the plaintiff demonstrates that subsequent fertility treatments would not have been performed if the embryos had not been destroyed. The damage for pain and suffering can be compensated regardless of what would have been the outcome of the implant. Indeed, even in the case where the implant of cryopreserved embryos would not have been successful, the loss of embryos is suitable to cause pain and suffering because it violates the right to become a parent. Nevertheless, the proof of such damage is difficult to achieve. In order to impede that the negligent loss of embryos would remain without consequences it seems to be possible and appropriate to provide a crime to punish those who cause the death of embryos by negligence.