ABSTRACT
… Although emotional disturbance damages are rarely awarded for breach of contract, the article explains why such awards are justified based on the current trend in contract law, as exemplified by Restatement (Second) of Contracts section 353 and posits that clinics and ART professionals are aware at the time of contracting that emotional disturbance is particularly likely in the event of a breach. Scholars have noted that tort damages for emotional harm often are unavailable when reproductive material is lost or destroyed, because the emotional harm is not parasitic to a physical injury, nor can aspiring parents overcome the traditional barriers to NIED recovery because they neither were in the ‘zone of danger’ nor were they bystanders at the time of loss. Therefore, for aspiring parents who reside in traditional barrier jurisdictions, breach of contract damages may represent their only hope to recover for emotional harm. This article posits that ART clinics and professionals have actual or constructive knowledge of plaintiffs’ particular reason for storing reproductive material – namely, to achieve a later pregnancy – at the time of contracting, so as to support consequential damages for emotional disturbance. This knowledge of the contract’s purpose, coupled with the nature of the transaction and the surrounding circumstances, put ART clinics and professionals on notice at the time of contracting that emotional disturbance is particularly likely to result from a breach. The article also posits that typical broad, sweeping exculpatory clauses contained in cryopreservation agreements that attempt to negate all liability for freezing and storage of reproductive material, including negligence liability, should not be enforced because such clauses render the agreement illusory and contravene public policy.
Joseph M Hnylka, Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost or Destroyed: Recovery of Consequential Damages for Emotional Disturbance When Breach of Contract Results in the Lost Opportunity to Become Pregnant with One’s Own Biological Child, 35 Journal of Law and Health 99 (2021).
First posted 2022-01-13 18:00:09
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