Lost or Destroyed Embryos

An embryo in a clinic's care should be where the records say it is, in the condition the records describe, until you decide what happens to it. When an embryo is missing, discarded without your consent, dropped, or warmed by mistake, that is a different kind of loss than an embryo that stops growing or does not survive a careful thaw. A lost embryo lawsuit starts by telling those two things apart. That takes the lab's own records, your signed instructions and an honest look at the biology of IVF.

What it means when embryos are lost or destroyed

After an egg retrieval, embryos spend most of their existence outside the body in a laboratory. They are cultured, often frozen, stored in tanks of liquid nitrogen, sometimes shipped to another clinic, and eventually warmed for transfer, donated, or discarded according to the patient's decision14. At every one of those points, someone is responsible for knowing which embryos belong to whom and where they are.

Professional guidance treats these as irreplaceable materials. A joint committee opinion of the American Society for Reproductive Medicine and two related societies describes stored embryos, eggs and sperm as “often irreplaceable,” including tissue stored by cancer patients2. That is why loss of an embryo can matter far beyond the cost of the cycle that created it.

Families usually contact us after one of these situations:

• The clinic cannot find embryos that its records say were frozen and stored
• Embryos were thawed, discarded or donated when your forms said to keep them
• An embryo was dropped, exposed to room temperature or otherwise damaged during handling
• Embryos were lost, delayed or warmed during shipment to another clinic or storage company
• Embryos were removed from storage as “unclaimed” without the contact steps your consent form described
• A whole storage tank failed, affecting many patients at once

Storage equipment failures have their own causes and records, and we cover them on our page about frozen embryo storage failures. When a clinic destroyed embryos after a genetic test result, see embryos discarded after genetic testing. If the embryo was not lost but went to the wrong patient, that is an embryo mix-up. Our IVF and fertility treatment injuries hub covers the other problems we review.

How embryos go missing, get thrown away or get damaged

Most storage safeguards are about identity and location. European laboratory guidance recommends that each frozen embryo's record show the patient's consent form, the label on the storage device, the date, the embryologist, the number of embryos per device and the exact tank and canister where it is kept1. It recommends a documented double-check of patient identity and embryo number when embryos are loaded, placed in the tank and taken out of the tank, and a periodic inventory that checks what is physically in the tanks against the storage records1.

When one of those steps is skipped or done carelessly, a few kinds of errors become possible:

• Inventory errors: A device is placed in the wrong canister, recorded in the wrong location, or never recorded at all, so the embryo cannot be found later.
• Disposal errors: The wrong patient's embryos are pulled for discard, or a discard request is processed before the paperwork is complete.
• Handling errors: A device is dropped, left out of liquid nitrogen too long, or warmed when it was not meant to be.
• Transport errors: A shipping container is not prepared or tracked properly, or nobody is clearly responsible from release to receipt.

For shipping, the same guidance says containers should be tested to keep embryos below −150°C for the longest expected trip, and the record should name the center responsible from release to receipt1.

Your consent forms and disposition instructions

Before embryos are frozen, patients sign consent and disposition forms. These documents decide what may happen to the embryos later: continued storage, use in treatment, donation to another patient, donation to research, or discard. Laboratory guidance treats the signed consent form as part of the core record for every frozen embryo, and it says extra embryos may be frozen, donated or discarded according to their quality, the patient's wishes and the law that applies1.

Clinics also need a plan for embryos whose owners stop paying or cannot be reached. The ASRM Ethics Committee says programs should have written policies on unclaimed embryos. Where a program has no specific policy, it considers disposal ethically permissible once a reasonable period has passed without contact, the contact efforts described in the consent form have been made, and no written instructions exist. Even then, it says unclaimed embryos may not be donated to other patients or used in research without written instructions5.

What the guidance expects

Location

Each stored embryo's record should include the tank and canister, the number of embryos per device and a unique identifier1.

Double-checks

Patient identity and embryo number should be double-checked and documented when embryos go into and come out of the tank1.

Inventory

A periodic inventory should compare the tanks' contents with the storage records1.

Unclaimed embryos

Programs should have written policies, and disposal should follow the contact steps set out in the consent form5.

When we review a loss, these are the questions we ask about your paperwork:

• Which forms did you sign, and which version was in effect on the date of the loss?
• What did the forms say should happen to the embryos, and under what conditions?
• Did you change your instructions later, in writing or by email?
• How was the clinic supposed to contact you before any discard, and did it?
• Did a second person, such as a spouse or donor, also have to consent?

Lost embryo lawsuits and where the law stands

These cases are less common than many people assume. A 2020 study searched court records from 2009 to April 2019 and found 133 lawsuits about lost, damaged or destroyed frozen embryos. Of those, 87 involved alleged tank failures in California and Ohio in 2018 and 2019. Most of the rest were brought as personal injury, contract or warranty, product liability, professional negligence, business-practice or other injury claims; only seven were brought as medical malpractice. Over the same years, U.S. clinics reported 398,256 embryo-thaw procedures6.

How the law treats the embryos themselves varies from state to state. A 2020 commentary noted that most plaintiffs bring contract and property-damage claims, and that, up to then, courts asked to treat a frozen embryo as a “person” under a wrongful death law had refused11. One of those courts was in Arizona.

Arizona: Jeter v. Mayo Clinic Arizona

A couple sued after alleging that a clinic negligently lost or destroyed five of their frozen embryos. In 2005 the Arizona Court of Appeals held that a three-day-old frozen embryo is not a “person” under the state's wrongful death law unless the legislature says otherwise. But the court also held that the couple had stated claims for negligent loss or destruction of the embryos, breach of fiduciary duty and breach of a bailment contract, and it sent those claims back to the trial court7.

Alabama: LePage v. Center for Reproductive Medicine

In Alabama, the lawsuits alleged that a hospital patient walked through an unsecured doorway into a clinic's storage area, removed embryos from a tank, and dropped them after the cold burned the patient's hand. Those facts were allegations, accepted as true only for the purpose of deciding a motion to dismiss8. The state Supreme Court's ruling and the response to it moved quickly:

The Alabama embryo cases

1. December 2020

   The date on which, according to the complaints, the embryos were destroyed8.

2. February 16, 2024

   The Alabama Supreme Court holds that frozen embryos are covered by the state's wrongful death statute for minors8.

3. March 6, 2024

   The legislature passes, and the governor signs, a law giving IVF providers civil and criminal immunity for damage to or death of an embryo, while letting pending cases continue89.

4. May 3, 2024

   The court denies the defendants' request for rehearing8.

5. July 31, 2024

   The LePage and Fonde case is dismissed with prejudice at the plaintiffs' request; a legal scholar writes that this was presumably the result of a settlement8.

The Alabama law also limits damages against makers of products used in IVF to the price paid for the affected cycle8. For families elsewhere, the lesson is that the claims available depend heavily on where the loss happened. Nothing here suggests that an embryo has the legal status of a person in your state.

What losing embryos can mean for your family

The loss is not only the embryos. It can change what treatment is still possible:

• Another egg retrieval, with more medication, monitoring and a procedure
• Fewer or no options if age or health now limits egg production
• No path to a genetic child for some cancer survivors who froze before treatment
• Losing the chance for genetic siblings for a child already born
• Added cost for new cycles, storage, travel and time off work
• Grief, anger and strain on a relationship
• Worry about whether remaining embryos are safe or correctly labeled

How the clinic told you matters too. A vague message, a delay or a changing story can add to the harm, and it can be evidence.

When to talk to an IVF lawyer about lost or destroyed embryos

It is reasonable to talk to an IVF lawyer when a clinic cannot account for embryos, when embryos were destroyed against your written instructions, or when the explanation you received does not match your records. A lawyer reviewing a lost embryo claim will usually consider:

• What the storage and disposition forms required
• What the inventory, witnessing and handling logs show
• Whether the loss fits a known biological pattern or a handling event
• Who had custody of the embryos when the loss occurred
• How and when the clinic disclosed the loss
• What treatment options remain and what new treatment would involve
• Which state's law applies and which claims it recognizes

Who may be responsible

Responsibility is never presumed. It depends on who had the embryos, what they agreed to do, and what went wrong. Depending on the facts, a claim may involve:

• The fertility clinic or hospital program
• The embryology laboratory or the company that runs it
• A long-term storage company or embryo bank
• A courier or shipping service
• Individual physicians or embryologists
• A maker of storage or shipping equipment, where a product failed

Filing deadlines for a lost or destroyed embryo claim

Every state sets time limits for lawsuits, and a lost embryo case may fall under more than one. A claim framed as medical malpractice may have a different deadline, and different pre-suit steps, than a contract or property claim. Some states start the clock when you discover the loss; others start it earlier.

Arizona is one example. It allows two years after a claim accrues to sue for personal injury, including medical malpractice, and for certain injuries to property10. In Jeter, the trial court ruled that Arizona's malpractice statutes barred some claims, and the appeals court reversed7. The label on a claim can matter. Because deadlines vary and can be short, talk to a lawyer soon after you learn of a loss.

Tell Us Your Story →

Records that help show what happened

Gather what you can

Your paperwork

• Signed consent and embryo disposition forms, including later changes
• Storage agreements, invoices and payment records
• Any notices about unpaid fees or unclaimed embryos

From the clinic or lab

• Embryology reports listing each embryo and its storage location
• Inventory, witnessing and thaw or discard logs
• Shipping records, chain-of-custody forms and courier receipts
• Any incident report or investigation summary

Communications

• Emails, portal messages and letters about the loss
• Notes of phone calls, with dates and names
• Records of later treatment needed because of the loss

What happens after you contact CBW Law

How a review works

1. You tell us what happened

   Share the dates, the clinic and what you were told. Rough dates are fine at the start.

2. We look at the paperwork

   We review your consent forms, storage agreements and any messages about the loss to see what was supposed to happen.

3. We request the records

   With your permission, we ask for the embryology, inventory and storage records that show where the embryos were.

4. We explain your options

   We tell you what we found, which deadlines may apply, and whether we can help or suggest another path.

A clinic that stores embryos should always know where they are, and families deserve a straight answer when it does not.

Plain English

Medical, Health & Insurance

Embryology records, consent forms and insurance statements use their own words. These are the ones that come up most in lost embryo cases.

Embryo storage terms

Cryopreservation

Freezing embryos, eggs or sperm so they can be stored and used later.

Vitrification

A fast-freezing method that uses protective solutions to keep ice crystals from forming inside the cells4.

Straw or device

The small labeled container that holds one or more frozen embryos inside a storage tank.

Canister

A holder inside the tank that keeps devices organized. The storage record should list it1.

Embryo development terms

Blastocyst

An embryo about five or six days after fertilization, often the stage at which embryos are frozen.

Developmental arrest

When an embryo stops dividing in the lab. It is common and is usually biological, not a sign of error on its own3.

Warming or thawing

Bringing a frozen embryo back to body temperature before transfer. Most frozen embryos survive it, but some do not4.

Consent and disposition terms

Disposition

What happens to embryos you no longer plan to use: continued storage, donation, research or discard.

Unclaimed embryos

Embryos whose owners cannot be reached and have left no written instructions. Professional guidance calls for written clinic policies on them5.

Bailment

A legal relationship in which one party holds another's property for safekeeping. Arizona's appeals court let a bailment claim go forward in an embryo case7.

Insurance and billing terms

Explanation of benefits (EOB)

A statement from your health plan showing what was billed, what it paid and what you owe. It can help prove the dates and cost of treatment.

Storage fee

The charge, often yearly, for keeping embryos frozen. Billing records can show which embryos the clinic said it was storing.

Fertility benefit

Coverage for fertility treatment through an employer or health plan. Its records can show what a lost cycle cost and what replacing it would cost.

Questions

Frequently asked lost or destroyed embryo questions

Short answers to what families ask us first.

Does losing an embryo mean the clinic was negligent?

No. Many embryos stop growing on their own, and some frozen embryos do not survive warming even with careful work34. A possible claim usually involves something different: embryos that cannot be found, were handled outside protocol, or were discarded against your written instructions.

Can I sue a fertility clinic for losing my embryos?

Possibly. Lost embryo lawsuits have been brought as contract, product liability, negligence and other claims6. Whether you have a claim depends on the facts, your signed forms and your state's law. A lawyer can review the records and tell you what may apply.

What if I signed a form allowing the clinic to discard embryos?

The form matters a great deal, but it is not the end of the question. A review checks which version you signed, what conditions it set, whether you changed it, and whether the clinic followed its own contact steps before discarding anything5.

Are frozen embryos considered people or property under the law?

It depends on the state and the type of claim. Arizona's appeals court held that a frozen embryo is not a person under its wrongful death law but allowed other claims7. Alabama's Supreme Court ruled differently in 2024, and the legislature then passed an immunity law89.

What happened in the Alabama embryo case?

Lawsuits alleged that a hospital patient entered a clinic's storage area and dropped embryos. In February 2024 the Alabama Supreme Court held that the state's wrongful death law for minors covered frozen embryos. Weeks later, Alabama passed a law giving IVF providers broad immunity, while letting pending cases continue89.

How long do I have to file a lost embryo lawsuit?

It depends on your state and on how the claim is framed. Arizona, for example, generally allows two years for personal injury and medical malpractice claims and for certain property claims10. Other states use different periods and may require notice before suit, so it is wise to talk to a lawyer soon.

What records should I ask my clinic for?

Ask for your embryology reports, storage location records, inventory and witnessing logs, any thaw or discard records, shipping paperwork and any incident report. Name them specifically, since a standard records request may not include lab files. Keep copies of everything you receive, and note the date you asked.

My embryos were lost during shipping. Who is responsible?

It depends on who had custody and what the agreements say. Laboratory guidance says shipping records should name the center responsible from release to receipt and note any incident during transport1. A review looks at the sending clinic, the receiving clinic and the courier.

Will a claim pay for another IVF cycle?

No result can be promised. When a claim is valid, what may be recovered depends on the state, the type of claim and the facts. Costs of replacing lost treatment are often part of the discussion, but each case is reviewed on its own.

What should I do first if my clinic reports a loss?

Write down what you were told, by whom and when. Keep every email and portal message, and ask in writing for your embryology, storage and incident records. Avoid signing any release or new agreement about the loss until you understand what it covers. Then talk to a lawyer about deadlines in your state.

Tell Us Your Story

Embryos can be lost to biology, and they can be lost to mistakes in handling, inventory, transport or disposal. The records usually show which one happened.

If your clinic cannot account for your embryos, or they were destroyed against your instructions, CBW Law can review what happened with you. We will be honest about what we find and whether we can help.

Tell Us Your Story →Call (800) 476-2416

This page is general information about lost or destroyed embryos. It is not legal or medical advice and does not create an attorney-client relationship. An unsuccessful cycle, a complication, an embryo loss or a testing limitation does not, by itself, establish that anyone was negligent. No outcome can be promised in any case.