Embryo Loss Lawsuit: Grounds, Damages, and Classification

If a clinic, lab, or manufacturer destroyed or damaged your frozen embryos, you can file an embryo loss lawsuit, and families across the country have done so by the hundreds. The typical defendants are the fertility clinic, the maker of the storage tank or culture media, and sometimes the hospital that housed the lab. What you can recover, though, depends on a question courts have not answered uniformly: whether a frozen embryo is property, a person, or something in between.¹

Who You Can Sue and On What Grounds

Embryo loss cases usually name more than one defendant because the harm often has more than one cause. In the lawsuits over CooperSurgical’s recalled LifeGlobal embryo culture media, plaintiffs sued the manufacturer on theories of strict product liability for a manufacturing defect, negligence in production and quality control, failure to warn doctors and patients, failure to recall the product in a timely manner, trespass to chattels for damage to the embryos as personal property, and unjust enrichment.²

In the Pacific Fertility Center tank failure, plaintiffs sued both the clinic and Chart Industries, the manufacturer of the storage tank. A federal jury ultimately found Chart 90 percent responsible for a manufacturing defect in the controller that monitored nitrogen levels, and the clinic 10 percent responsible.³

Defendants sometimes try to recharacterize these claims as medical malpractice, because malpractice damages are capped in many states. In the University Hospitals litigation in Ohio, the court rejected that move, holding that failing to monitor a cryopreservation storage unit did not constitute “practicing medicine.”⁴ That ruling kept the claims in contract and property territory, where damages were not capped.

What You Can Actually Recover

Plaintiffs in these cases typically seek compensation for wasted IVF expenses, the loss of the embryos themselves, emotional distress, and in some cases punitive damages.⁵ Whether courts allow all of those categories depends on how the embryos are classified.

Where embryos are treated as property, damages tend to track replacement and storage costs. A 1995 Rhode Island case accepted that frozen embryos were “irreplaceable” property and allowed a claim for loss of unique property, but denied emotional distress damages because the plaintiffs had not witnessed the destruction and showed no physical symptoms.¹

Juries, however, have gone well beyond replacement cost when the facts allow. In June 2021, five Pacific Fertility Center plaintiffs were awarded nearly $15 million, with more than $14 million of that attributed to pain, suffering, and emotional distress.³

Most cases never reach a jury. A review of court dockets from 2009 through early 2019 identified 133 embryo loss lawsuits, and of the 90 closed cases, 88 settled out of court. Settlement terms are almost never disclosed.⁶ More than 150 families reached undisclosed settlements with University Hospitals after the Ohio freezer malfunction, and the hospital denied liability throughout.⁷

Why Classification Decides Your Case

No court system has answered the same question the same way: what is a frozen embryo, legally? That answer governs both the claims you can bring and the money you can recover.

Most courts treat embryos as property. That classification supports claims for breach of contract, negligence, bailment, and conversion, but it tends to limit damages to the cost of producing or storing the embryos.¹ Families and legal scholars have criticized this framework for reducing something of enormous personal significance to the level of damaged furniture.⁸

Treating embryos as persons would unlock wrongful death claims, which carry much larger damage awards. Outside Alabama, courts have almost universally rejected that classification. In the Ohio litigation, Wendy and Rick Penniman pursued wrongful death claims and lost. The Cuyahoga County judge held that an embryo’s personhood “is a matter of faith or of their personal beliefs, not of science and not of law.” An appeals court affirmed, and the Pennimans settled.⁹⁷ Courts in Arizona, Michigan, and Rhode Island have likewise declined to classify embryos as persons or human beings under state law.¹⁰

Alabama Is the Exception

On February 16, 2024, the Supreme Court of Alabama ruled in LePage v. Center for Reproductive Medicine that frozen embryos qualify as “children” under the state’s Wrongful Death of a Minor Act. The case arose after a patient at Mobile Infirmary Medical Center wandered into an unsecured cryogenic storage area in December 2020, removed several embryos, and dropped them on the floor.¹¹

The majority held that the statute “applies to all children, born and unborn, without limitation,” and rejected the idea of an unwritten exception for embryos outside a uterus.¹¹ After the ruling, the University of Alabama at Birmingham and other clinics paused IVF services over fears that routine practices like discarding nonviable embryos could trigger wrongful death or criminal liability.¹²

The Alabama legislature responded within two weeks. Governor Kay Ivey signed Senate Bill 159 on March 6, 2024, granting civil and criminal immunity to IVF providers for the death of or damage to embryos during treatment. The law did not overturn the court’s classification of embryos as children, so that underlying definition remains in place.¹³ For an Alabama patient whose embryos were destroyed, the practical effect is that the wrongful death theory still exists on paper but is blocked against providers acting during treatment.

Louisiana sits in its own category: the state has prohibited the intentional destruction of embryos since 1986 and treats any embryo developing for 36 hours after fertilization as a “juridical person.”¹⁴

The CooperSurgical Culture Media Cases

The largest active wave of embryo loss litigation involves CooperSurgical’s LifeGlobal embryo culture media, a nutrient fluid used in IVF labs to support embryo development before implantation. In December 2023, CooperSurgical recalled three production lots after reporting a “sudden increase in complaints” about impaired embryo development. The FDA classified the action as a Class 2 Device Recall, and 994 bottles were in commerce across 33 states and 25 countries.¹⁵

A root cause analysis found that the recalled lots were missing magnesium entirely and contained double the intended concentration of potassium phosphate. The raw material containers were identical in color and shape, the manufacturing process had no safeguards against confirmation-bias errors during weighing, and the standard release testing was not designed to detect the absence of a critical ingredient.¹⁶ CooperSurgical publicly confirmed the magnesium deficiency in a March 2024 follow-up notice.¹⁷

Litigation moved quickly. The first lawsuit was filed in December 2023; by April 2024, more than 100 cases had been filed.¹⁸ The U.S. Judicial Panel on Multidistrict Litigation denied a request to consolidate the federal cases into an MDL in October 2024, finding that informal coordination among a small number of judges was enough.¹⁹ Most federal cases concentrated in the Northern District of California, with others in New Mexico and Oregon, and additional cases proceeded in Connecticut Superior Court and Los Angeles County Superior Court.¹⁷

In December 2024, U.S. District Judge Jon S. Tigar denied CooperSurgical’s motions to dismiss and to strike the class, allowing the case to move toward class certification.¹⁸ On May 5, 2026, CooperSurgical reached a settlement with a proposed class of IVF patients and their partners. The amount and terms have not been publicly disclosed. Judge Tigar dismissed the existing lawsuits with a provision allowing reinstatement if the settlement is not finalized within 90 days.²⁰

The 2018 Tank Failures Set the Pattern

Two cryogenic tank failures a day apart in March 2018 produced the largest wave of embryo loss cases before CooperSurgical and still shape how later lawsuits are framed.

At the Pacific Fertility Center in San Francisco, liquid nitrogen depleted in a storage tank on March 4, 2018, destroying approximately 3,500 frozen eggs and embryos. The June 2021 jury verdict of nearly $15 million for five plaintiffs assigned 90 percent of the fault to Chart Industries and 10 percent to the clinic.³ A broader class action was consolidated in the Northern District of California under Judge Jacqueline Scott Corley.²¹

On March 3, 2018, a freezer malfunction at University Hospitals Ahuja Medical Center in Beachwood, Ohio destroyed about 4,000 eggs and embryos belonging to more than 900 families. The litigation spanned Cuyahoga County Common Pleas Court (79 lawsuits), Geauga County (19 consolidated lawsuits covering about 40 families), and three federal suits involving about 15 families. More than 150 families had settled by September 2019.⁷

Scope of the Problem

Embryo loss claims are not rare events scattered across the country. The 2009 to early 2019 docket review identified 133 lawsuits, 122 of them in state court. Storage tank failures drove 84 percent of the cases, laboratory errors about 6 percent, miscommunication and human error about 4.5 percent, and transit losses about 4 percent.⁶

A separate NBC News analysis covering 2019 through 2024 identified more than 300 lawsuits across 19 states. At least 260 involved product or equipment failures, 82 involved staff mistakes, 13 involved embryos or genetic material being swapped, and more than 50 were tied to the CooperSurgical recall.²²

Arbitration Clauses and Oversight Gaps

Before you sue, check what you signed. Many fertility patients are bound by mandatory arbitration clauses in their clinic contracts, which keep disputes out of court and out of public view.²² That provision alone can determine whether your claim becomes a public lawsuit or a confidential proceeding.

The regulatory backdrop also affects what evidence you may be able to build a case on. IVF clinics in the United States are not subject to federal inspections comparable to those required of blood banks and are not required to report serious errors to federal or state regulators.²² Cryopreservation tanks are classified by the FDA as Class II devices, which do not require premarket approval.⁶ The FDA regulates culture media and other devices that contact gametes and embryos and issues guidance on testing standards such as the Mouse Embryo Assay, but there are no established voluntary consensus standards for conducting that test.²³ The CooperSurgical recall showed how a product could pass the only test required for release while missing a critical ingredient.

If your embryos were lost, damaged, or destroyed, your realistic path forward is a civil claim against the clinic, the equipment maker, or the product manufacturer, framed in some combination of product liability, negligence, breach of contract, bailment, and property torts. The size of the recovery will depend on your state’s classification of embryos, whether the facts allow for emotional distress damages, and whether your clinic contract pushes the case into arbitration.

1
AMA Journal of Ethics. Loss of Frozen Embryos
2
ClassAction.org. J.G. v. CooperSurgical Complaint
3
NBC News. $15M Awarded to Five People Who Lost Eggs, Embryos at Fertility Clinic
4
Rivkin Radler. Embryo Destruction Lawsuits Open New Legal Frontier
5
AboutLawsuits. IVF Lawsuit: CooperSurgical Culture Media
6
PMC. Lawsuits for Lost, Damaged, or Destroyed Cryopreserved Embryos
7
Cleveland.com. UH Freezer Malfunction Update: More Than 150 Families Settle
8
The Hastings Center. Fetal Personhood, IVF, and the Negligent Loss of Embryos
9
ABC News. Couple Argues Lost Frozen Embryo Is a Person in Lawsuit
10
PMC. Legal Classification of Frozen Embryos
11
Justia. LePage v. Center for Reproductive Medicine
12
Georgetown Law. Creeping Personhood: Analyzing the Impact of Alabama Supreme Court’s Decision on IVF
13
Arizona State University. Alabama IVF Case Legal Memo
14
PMC. Impact of Alabama Embryo Ruling on IVF Practice
15
FDA. Class 2 Device Recall: Global Medium
16
FDA. MAUDE Adverse Event Report: CooperSurgical IVF Media
17
Motley Rice. CooperSurgical IVF Lawsuits
18
Drugwatch. IVF Solution Lawsuits
19
GovInfo. In Re: The Cooper Companies MDL No. 3122
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AboutLawsuits. CooperSurgical Settlement: Embryo Destruction Class Action
21
Lieff Cabraser. Pacific Fertility Center Tank Failure
22
NBC News. IVF Errors and Legal Protections
23
FDA. Mouse Embryo Assay for Assisted Reproduction Technology Devices