1 Witt v. Yale-New Haven Hosp., 977 A.2d 779, 792 (Conn. Super. Ct. 2008).

2 Center for Disease Control and Prevention, Assisted Reproductive Technology (ART) ART Success Rates [hereinafter Success Rates], https://www.cdc.gov/art/artdata/index.html [https://perma.cc/WB9Q-DT5L] (last updated Sept. 2, 2020); Final National Summary Report for 2018, Society for Assisted Reproductive Technology [hereinafter Summary Report for 2018], https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?reportingYear=2018 [https://perma.cc/QF5W-A26N] (last visited June 22, 2020).

3 See Success Rates, supra note 1.2.

4 See id..

5 Frozen Embryos and the “Disposition Decision,” Charlotte Lozier Institute (July 16, 2018), https://lozierinstitute.org/frozen-embryos-and-the-disposition-decision/ [https://perma.cc/J4H5-VCND].

6 Success Rates, supra note 1.2.

7 See H.R. 2803, 116th Cong. (2019); S. 1461, 116th Cong. (2019) (addressing insurance coverage for fertility preservation services); Press Release, Senator Cory Booker, Booker, Menendez, DeLauro Introduce Bill to Increase Access to Infertility Treatment (May 17, 2019) (available at https://www.booker.senate.gov/news/press/booker-menendez-delauro-introduce-bill-to-increase-access-to-infertility-treatment [https://perma.cc/SJ7Q-4DRU]).

8 See, e.g., Heide, Ingrid H., Negligence in the Creation of Healthy Babies: Negligent Infliction of Emotional Distress in Cases of Alternative Reproductive Technology Malpractice Without Physical Injury, 9 J. MED. & L. 55, 57 (2005)Google Scholar (“With the escalating number of ART procedures, the incidence of ART malpractice is likely to become increasingly more common… Most notable are cases in which there has clearly been negligence on the part of fertility professionals, but no physical injury on the part of the mother or the child. These cases include the destruction, misplacement, mis-fertilization, and mis-implantation of embryos. The lack of physical injury seems to leave the victims of fertility malpractice without a compensable injury.”). Ingrid H. Heide’s article also argues that stand-alone emotional distress damages should be permitted ART malpractice cases without physical injury, analogizing ART malpractice to cases involving the mutilation and mishandling of human remains. Id. at 72-75.

9 Holly Yan, A Cleveland Fertility Clinic That Lost 4,000 Eggs and Embryos Just Got Hit with Two More Lawsuits, CNN (Feb. 5, 2020), https://www.cnn.com/2020/02/05/us/ohio-fertility-clinic-lost-eggs-embryos-lawsuits/index.html [https://perma.cc/A5T6-HBNF]; Ariana Eunjung Cha, These Would-be Parents’ Embryos Were Lost. Now They’re Grieving – and Suing, WASH. POST (Aug. 24, 2018), https://www.washingtonpost.com/national/health-science/these-would-be-parents-embryos-were-lost-now-theyre-grieving--and-suing/2018/08/24/57040ab0-733c-11e8-805c-4b67019fcfe4_story.html; Jessica Ravitz, New Lawsuits Filed Against Cleveland Fertility Clinic Where 4,000 Embryos Were Lost, CNN (Jan. 24, 2019), https://www.cnn.com/2019/01/24/health/cleveland-fertility-clinic-embryos-lawsuit-bn/index.html [https://perma.cc/EJN8-XZMP].

10 See, e.g., Witt v. Yale-New Haven Hosp., 977 A.2d 779, 788 (Conn. Super. Ct. 2008). (noting the significant emotional stress that routinely accompanies ART procedures and concluding defendants were aware that plaintiffs’ lost opportunity to conceive a child together could reasonably result in severe emotional distress); Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 29 (N.Y. App. Div. 2001) (recognizing the severity of emotional harm when plaintiffs were “deprived of the opportunity of experiencing pregnancy, prenatal bonding and the birth of their child, and by their separation from the child by more than four months after his birth.”); Bender, Leslie, Genes, Parents, and Assisted Reproductive Technologies: Arts, Mistakes, Sex, Race, & Law, 12 Colum. J. Gender & L. 1, 5 (2003)Google ScholarPubMed (“In addition to any physical harms that arise from ART mistakes, the emotional distress is unimaginable.”); Panitch, Alise R., The Davis Dilemma: How to Prevent Battles over Frozen Preembryos, 41 Case W. Res. L. Rev. 543, 573 (1991)Google ScholarPubMed (“Any spouse ultimately denied the chance to have a child through IVF would probably suffer considerable emotional stress.”).

11 This article addresses recovery for common law NIED as a distinct cause of action, not parasitic emotional distress that accompanies a separate distinct injury, usually compensated in the form of a reward for pain and suffering. See Dobbs, Dan B., Undertakings and Special Relationships in Claims for Negligent Infliction of Emotional Distress, 50 ARIZ. L. REV. 49, 51 (Spring 2008)Google Scholar (discussing the distinction and noting courts “have struggled to deal with negligently inflicted stand-alone emotional harm.”). Some jurisdictions now have statutes that address cryopreservation of procreative material, although the statutes do not address stand-alone claims for NIED and are not on-point for purposes of this article. See Langley, Laura S. J.D., & Blackston, Joseph W., Sperm, Egg, and A Petri Dish Unveiling the Underlying Property Issues Surrounding Cryopreserved Embryos, 27 J. Legal Med. 167, 193–94 (2006)CrossRefGoogle Scholar (discussing legislation and noting “many states have enacted legislation dealing with embryos in the context of human cloning and abortion….”).

12 See, e.g., Rickey v. Chi. Transit Auth., 457 N.E.2d 1, 4 (Ill. 1983) (quoting Shipley, W. E., Annotation, Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong, 64 A.L.R.2d 100, 103 (1959)Google Scholar) (stating “The case law in the [NIED] field here treated is in an almost unparalleled state of confusion.”); see also Dobbs, supra note 11, at 51 (noting courts “have struggled to deal with negligently inflicted stand-alone emotional harm” and “have created many paths to confusion.”).

13 While plaintiffs typically may assert claims for breach of contract, property loss, bailment, etc. in addition to their claim for NIED, plaintiffs’ primary injury is emotional, and these theories are inadequate to compensate plaintiffs for the emotional harm caused by the loss of their ability to conceive a child together. See Auger, Erika N., The “ART” of Future Life,: Rethinking Personal Injury Law for the Negligent Deprivation of a Patient’s Right to Procreation in the Age of Assisted Reproductive Technologies, 94 Chi-Kent L. Rev. 51, 53-54, 63-68, 72-74 (2019)Google Scholar (discussing the inadequacy of various theories of recovery when reproductive material is lost or destroyed).

14 See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 546-48 (1994) (noting that these barriers are functionally equivalent, as they all operate to limit stand-alone NIED recovery); see also Gilsinger, Dale Joseph, Annotation, Recovery Under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another where Bystander Plaintiff must Suffer Physical Impact or be in Zone of Danger, 89 A.L.R.5th 255 (2001 & Supp. 2020)Google Scholar (discussing the traditional barriers to NIED recovery and providing list of authorities).

15 See, e.g., York v. Jones, 717 F. Supp. 421, 427 (E.D. Va. 1989) (recognizing that plaintiffs had a property interest in their stored pre-zygote); Kurchener v. State Farm Fire & Cas. Co., 858 So. 2d 1220, 1221 (Fla. Dist. Ct. App. 2003) (recognizing that under Florida law destruction of sperm constitutes property damage.); Frisina v. Women and Infants Hosp., Nos. CIV.A.95-4037, 2002 WL 1288784, at *4-5 (R.I. Super. Ct. May 30, 2002) (noting that stored pre-embryos cannot be classified as victims to support bystander NIED); Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992), on reh'g in part, No. 34, 1992 WL 341632 (Tenn. Nov. 23, 1992) (concluding “that pre-embryos are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential for human life.”); see also Auger, supra note 13, at 54 (arguing that classification of the lost or destroyed reproductive material is a necessary first step, because only after classification can courts “apply the correct body of law to such claims.”).

16 See, e.g., Davis, 842 S.W.2d at 594 (discussing the “persons” versus “property” dichotomy in the law and holding pre-embryos “occupy an interim category that entitles them to special respect” due to their potential for human life.).

17 See, e.g., Frisina, 2002 WL 1288784, at *8-10 (noting that plaintiffs will not be able to establish their lost pre-embryos were victims, and identifying plaintiffs’ loss as a property loss.). This misplaced focus also shows how courts confuse parasitic emotional harm with the separate cause of action for emotional distress.

18 See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47(b) (Am. Law Inst. 2012); Mower v. Baird, 2018 UT 29, 422 P.3d 837, 841 (Utah 2018) (adopting section 47 in part when therapist’s negligence resulted in false memories of abuse by father); Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 820 (D.C. 2011) (holding draft rule section 46 [the current section 47] supported NIED claim against clinic that misdiagnosed patient as having HIV); Dobbs, supra note 11, at 54-56 (noting that stand alone NIED liability is appropriate and traditional barriers to liability do not apply when defendants have undertaken a duty of care that implicates plaintiff’s emotional well-being); see also Toney v. Chester Cty. Hosp., 36 A.3d 83, 95-96 (Pa. 2011) (striking traditional barriers to NIED recovery when relationship/undertaking has “potential of deep emotional harm in the event of breach” and encompasses “an implied duty to care for the plaintiff’s emotional well-being.”).

19 See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47(b) (AM. Law Inst. 2012).

20 See id. The author is aware that the speculative nature of the injury also poses a problem for plaintiffs calculating damages, because pregnancy is not guaranteed when IVF is used. Although a discussion of calculation of damages is beyond the scope of this article, the issue has been addressed by other scholars who have suggested interesting approaches. For example, one scholar has suggested using loss of chance doctrine to adjust any award. See Fox, Dov, Reproductive Negligence, 117 Colum. L. Rev. 149, 199-200 (2017)Google Scholar. But see In re Med. Rev. Panel of Zsa Zsa Dunjee, 2010-1217 (La. App. 4 Cir 1/26/11); 57 So. 3d 541, 552 (although physician’s treatment fell below the standard of care, there are no facts to support the “conjecture” that plaintiff would have been able to conceive a child). Nevertheless, it is important to note that, despite difficulties in calculating damages, courts have permitted stand-alone NIED recovery even though there is no guarantee ART procedures will successfully produce a child, and acknowledge that distress nevertheless is severe based on the mere loss of an opportunity to produce a child. See Witt v. Yale-New Haven Hosp., 977 A.2d 779, 787-88 (Conn. Super. Ct. 2008) (noting that plaintiffs recovery would be barred if the chances of ART success were zero, but rejecting the defendant’s argument that recovery should be barred “because it was unreasonable for the plaintiffs to expect to use the ovarian tissue successfully….”).

21 Toney, 36 A.3d at 91 (citing Keating, Gregory C., Is Negligent Infliction of Emotional Distress a Freestanding Tort?, 44 Wake Forest L. Rev. 1131, 1168-69 (2009)Google Scholar (same)) (noting not all breaches of duty should support stand-alone NIED recovery); see also Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 545 (1994) (noting that no jurisdiction permits recovery for every emotional harm, even when causation is present).

22 See, e.g., Hedgepeth, 22 A.3d at 818; Mower, 422 P.3d at 848, 854.

23 Mower, 422 P.3d at 854 (recognizing the continued development of NIED law and acknowledging the Restatement (Third) of Torts as reflecting the current evolutionary trend).

24 Courts and scholars have noted the traditional barriers of physical injury/impact, zone of danger, and bystander, do not apply and should not be used when “the negligent actor has a relationship or has committed to an undertaking with the plaintiff of such nature that negligent performance of a legal obligation to the plaintiff is very likely to cause serious emotional harm, and, in fact, does so.” Hedgepeth, 22 A.3d at 800; Mower, 422 P.3d at 858 (“in addition to permitting recovery based on the ‘zone of physical danger’ rule,” the law allows for recovery based on a defendant’s duty to refrain from affirmatively causing a plaintiff severe emotional distress while engaging in certain relationships, activities, or undertakings); accord Dobbs, supra note 11, at 49 (arguing that the traditional barriers to stand alone NIED recovery “are inappropriate both when the defendant has a special relationship to the plaintiff and when the defendant has undertaken a duty of care that implicates the plaintiffs’ emotional well-being.”); Heide, supra note 8, at 78 (arguing the bystander rules should not apply to cases of ART practitioner malpractice); see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 cmts. a, c, f (Am. L. Inst. 2012).

25 See National Center for Chronic Disease Prevention and Health Promotion, 2016 Assisted Reproductive Technology National Summary Report, at 50 (U.S. Dep’t Health and Hum. Servs. 2018) [hereinafter Summary Report for 2016], https://www.cdc.gov/art/pdf/2016-report/ART-2016-National-Summary-Report.pdf [https://perma.cc/UHB8-NQLL] (noting a 39% increase between 2007 and 2016 in ART cycles with the intent to transfer at least one embryo).

26 See, e.g., Embryo Freezing: What You Need To Know, Med. News Today [hereinafter Embryo Freezing], https://www.medicalnewstoday.com/articles/314662.php [https://perma.cc/7BWU-PEL9] (last visited June 22, 2020) (noting the use and benefits of embryo cryopreservation).

27 Id.; see also Embryo Cryopreservation, Cleveland Clinic [hereinafter Embryo Cryopreservation], https://my.clevelandclinic.org/health/treatments/15464-embryo-cryopreservation [https://perma.cc/4C42-XNNA] (last visited June 22, 2020).

28 Embryo Freezing, supra note 26; see also Embryo Cryopreservation, supra note 27.

29 Embryo Freezing, supra note 26; see also Embryo Cryopreservation, supra note 27.

30 Although helping individuals become parents is the primary focus of ART – and the loss of the ability to procreate is the focus for plaintiff’s NIED addressed in this article – the author is aware that there are other, less common, uses of ART, including donating embryos for research. See, e.g., Embryo Cryopreservation, supra note 27.

31 See, e.g., Embryo Cryopreservation, supra note 27. Although helping individuals become parents is the primary focus of ART – and the loss of the ability to procreate is the focus for plaintiff’s NIED addressed in this article. Of course, there are other, less common, uses of ART, including donating embryos for research. See, e.g., id.

32 Id.; see also What is In Vitro Fertilization?, American Society for Reproductive Medicine [hereinafter In Vitro Fertilization], https://www.reproductivefacts.org/faqs/frequently-asked-questions-about-infertility/q05-what-is-in-vitro-fertilization/ [https://perma.cc/FMZ4-LG9N] (last visited June 23, 2020).

33 Fertility Blog, IVF by the Numbers, Penn Medicine, https://www.pennmedicine.org/updates/blogs/fertility-blog/2018/march/ivf-by-the-numbers [https://perma.cc/QX7J-6ZVM] (last visited June 23, 2020).

34 In Vitro Fertilization, supra note 32.

35 Id.

36 Embryo Cryopreservation, supra note 27.

37 Embryo Freezing, supra note 26; see also Embryo Cryopreservation, supra note 27; Egg Freezing, Mayo Clinic, https://mayoclinic.org/tests-procedures/egg-freezing/about/pac-20384556 [https://perma.cc/GD4P-S9WU] (last visited June 23, 2020).

38 Embryo Cryopreservation, supra note 27 (noting that embryos are stored in liquid nitrogen at - 321 degrees Fahrenheit).

39 Embryo Freezing, supra note 26 (noting “a correctly frozen embryo can remain viable for any length of time” and that embryos stored in excess of ten years have been used for successful pregnancies). Some sources acknowledge it is unknown precisely how long such material can be stored while remaining viable. See, e.g., Embryo Cryopreservation, supra note 27 (noting that a frozen embryo’s precise storage life is unknown, but they remain viable for “many years.”). This is because cryopreservation of embryos, for example, has only been carried out since 1983. Embryo Freezing, supra note 26 (noting “No long-term research into embryo freezing exists because doctors have only been carrying out the procedure since 1983.”).

40 Embryo Freezing, supra note 26 (noting that embryos stored in excess of ten years have been used for successful pregnancies); Embryo Cryopreservation, supra note 27 (noting that embryos can be frozen in liquid nitrogen for many years).

41 Egg, Embryo and Sperm Freezing, Sutter Health, https://www.sutterhealth.org/pamf/services/fertility/egg-embryo-sperm-freezing [https://perma.cc/A8S4-D8N9] (last visited June 22, 2020).

42 Id.

43 See, e.g., Embryo Freezing, supra note 26.

44 See, e.g., id. (but noting further study is needed); Embryo Cryopreservation, supra note 27.

45 See, e.g., Rickey v. Chi. Transit Auth., 457 N.E.2d 1, 4 (Ill. 1983) (stating “The case law in the [NIED] field here treated is in an almost unparalleled state of confusion.”) (quoting Shipley, W. E., Annotation, Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong, 64 A.L.R. 2d 100, 103 (1959)Google Scholar; see also Dobbs, supra note 10, at 51 (noting courts “have struggled to deal with negligently inflicted stand-alone emotional harm” and “have created many paths to confusion.”).

46 See, e.g., Ess v. Eskaton Properties, Inc., 118 Cal. Rptr. 2d 240, 244 (Cal. Dist. Ct. App. 2002) (“Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.”); Hamilton v. Nestor, 659 N.W.2d 321, 324 (2003) (recognizing that an NIED is not a separate cause of action from negligence, but when “the injury which is claimed to have resulted from such negligence is purely an emotional one. This, then, is an action for negligent infliction of emotional distress.”).

47 See, e.g., Ess, 118 Cal. Rptr. 2d at 244 (“Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.”); Hamilton, 659 N.W.2d at 324 (recognizing that an NIED is not a separate cause of action from negligence, but when “the injury which is claimed to have resulted from such negligence is purely an emotional one. This, then, is an action for negligent infliction of emotional distress.”).

48 See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 545-47 (1994) (discussing the major limitations to NIED recovery imposed by various states). For example, at least nineteen jurisdictions require plaintiff to be within a zone of danger where he was at risk of bodily harm to require for NIED. See Jacob A. Stein, 2 Stein on Personal Injury Damages Treatise § 10:32 (3d ed. Apr. 2020 Update) (listing cases); Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation § 31:31,

Negligent conduct causing emotional injury—Plaintiff as bystander: Apprehension of harm to another—Impact rule; zone of danger requirement (2d ed. June 2020 Update) (same); Gilsinger, supra note 14. Similarly, at least half of the country’s jurisdictions have adopted some form of bystander recovery for stand-alone emotional distress. Stein, supra § 10:35; accord LINDAHL, supra § 31:28.

49 See Consol. Rail Corp., 512 U.S. at 545-47 (noting that these barriers are functionally equivalent, as they all operate to limit stand-alone NIED recovery).

50 Id. at 546-47 (stating “Three major limiting tests for evaluating claims alleging negligent infliction of emotional distress have developed in the common law.”). Courts also have explained these limits in various ways, with some courts saying the limits establish a lack of proximate causation, while other courts say they involve the element of duty. Id. at 546. Finally, some courts also have used the Economic Loss Rule and the classification of the lost or destroyed reproductive material to deny stand-alone NIED recovery. Doe v. Irvine Sci. Sales Corp., 7 F. Supp. 2d 737, 741-43 (E.D. Va. 1998). For a discussion of the traditional barriers, see Hoskins, Jeffrey, Note, Negligent Infliction of Emotional Distress: Recovery is Foreseeable, 39 J. Marshall L. Rev. 1019, 1022-30 (2006)Google Scholar.

51 See, e.g., Consol. Rail Corp., 512 U.S. at 544 (distinguishing recovery for NIED from recovery for pain and suffering parasitic to a physical injury); Hamilton, 659 N.W.2d at 324–25 (same).

52 When a plaintiff’s reproductive materials are lost or destroyed due to another’s negligence, Plaintiff’s emotional harm is not caused by a physical injury to plaintiff, regardless of whether the emotional harm may result in physical symptoms. See Consol. Rail Corp., 512 U.S. at 544, cited in Hamilton, 659 N.W.2d at 325. Courts have noted that the “fundamental differences between emotional and physical injuries” have led courts to limit recovery for purely emotional harm for public policy reasons. Consol. Rail Corp., 512 U.S. at 545, quoted in Hamilton, 659 N.W.2d at 325.

53 Consol. Rail Corp., 512 U.S. at 547 (noting the physical injury requirement is a major limitation to NIED recovery and originated in the earliest NIED cases over a century ago). However, courts also have noted that limitation is often criticized, because courts go to great extremes to find an impact where one is not present. See Osborne v. Keeney, 399 S.W.3d 1, 15-17 (Ky. 2012) (same); Toney v. Chester Cty. Hosp., 36 A.3d 83, 98 (Pa. 2011) (discussing criticism of the impact rule by both courts and scholars); Prosser & Keeton, The Law of Torts §§ 12, 54 (same).

54 Consol. Rail Corp., 512 U.S. at 547; see also Dowty v. Riggs, 385 S.W.3d 117, 121 (Ark. 2010) (noting there can be no recovery for emotional distress in Arkansas without a physical injury); Naccash v. Burger, 290 S.E.2d 825, 830 (Va. 1982).

55 Irvine Sci. Sales Co., 7 F. Supp. 2d at 741.

56 S. Baptist Hosp. of Fla. v. Welker, 908 So.2d 317, 320 (Fla. 2005), quoted in R.W. v. Armor Corr. Health Servs., Inc., 830 F. Supp. 2d 1295, 1303 (M.D. Fla. 2011); see also Reiser v. Wachovia Corp., 935 So. 2d 1236, 1236 (Fla. Dist. Ct. App. 2006) (noting “Florida does not recognize a cause of action for negligent infliction of emotional distress, at least in the absence of a physical impact or injury.”); Malibu Boats, LLC v. Batchelder, 819 S.E.2d 315, 318 (Ga. Ct. App. 2018) (“[T]he current Georgia impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.”); Atl. Coast Airlines v. Cook, 857 N.E.2d 989, 996 (Ind. 2006) (stating Indiana's modified impact rule “requires direct physical impact; however, the impact does not need to cause physical injury to the plaintiff, and the emotional trauma suffered by the plaintiff does not need to result from a physical injury caused by the impact.”). However, some jurisdictions using the impact requirement have held the impact may be satisfied by trivial or minor contact. See, e.g., Corgan v. Muehling, 522 N.E.2d 153, 156 (Ill. App. Ct. 1988), aff'd, 574 N.E.2d 602 (1991) (citing Rickey v. Chi. Transit Auth., 457 N.E.2d 1, 4 (1983)) (stating “this [impact] requirement had been frequently satisfied by trivial contacts, and that consequently the impact rule had fallen into disfavor.”).

57 Restatement (Second) of Torts § 436A (1965). The rule was created to protect the courts from stand-alone NIED claims which were viewed as “speculative” and “fictitious.” R.W., 830 F. Supp. 2d at 1303. It is crucial to note that section 436A was replaced by the Restatement (Third) of Torts § 47, which forms the basis for this article. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 (Am. Law Inst. 2012). The Restatement authors stated “[t]his section [47] replaces Section 436A of the Restatement Second of Torts” which bars recovery for emotional disturbance alone, without bodily harm or compensable damages. Restatement (Second) of Torts § 436A cmt. A (1965).

58 At least nineteen jurisdictions require plaintiff to be within a zone of danger where he was at risk of bodily harm to require for NIED. See Stein, supra note 48, § 10:32 (listing cases); Lindahl, supra note 48, § 31:31 (same); see also Consol. Rail Corp., 512 U.S. at 547-48 (noting that the zone of danger approach is followed in at least fourteen jurisdictions). For additional discussion and authorities regarding the zone of danger approach, see Gilsinger, supra note 14.

59 See, e.g., Hammond v. Lane, 515 N.E.2d 828, 830 (Ill. App. Ct. 1987).

60 See, e.g., id. at 834 (citing Rickey, 457 N.E.2d at 1) (“there is a limited exception to this ‘impact rule’ recently recognized by our supreme court, and cited by both parties to this appeal, wherein a bystander ‘who is in a zone of physical danger and who, because of the defendant's negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress.”); Mower v. Baird, 2018 UT 29, 422 P.3d 837, 850 (Utah 2018) (citing Hansen v. Sea Ray Boats, 830 P.2d 236, 239-40 (Utah 1992)) (“when a defendant breaches the traditional duty owed to the plaintiff by placing him or her at risk of actual physical peril, the plaintiff may recover for negligent infliction of emotional distress”).

61 Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo. 1983) (“the time has come for Missouri to join the mainstream of Anglo-American jurisprudence by abandoning the classic impact rule.”); see also Schultz v. Barberton Glass Co., 447 N.E.2d 109, 112 (Ohio 1983) (“ Having carefully examined the arguments in support of the contemporaneous physical injury rule, it is clear that continued adherence to the rule makes little sense.”)

62 Doe v. Irvine Sci. Sales Corp., 7 F. Supp. 2d 737, 741-43 (E.D. Va. 1998).

63 Id. at 738. Because plaintiffs had no special relationship or undertaking directly with named defendants, this article’s recommended approach to recovery using Restatement 47(b) could not be used in this case. Nevertheless, the case does illustrate how the physical injury/impact requirement may be used to bar recovery.

64 Id. at 738-39.

65 Id. at 739.

66 Id. at 738. It is interesting to note that Plaintiffs did not sue their IVF clinic or specialists.

67 Id. at 738-39.

68 Id. at 739.

69 Id.

70 Id.

71 Id. Plaintiffs also sued for intentional infliction of emotional distress, but that claim was dismissed with prejudice based on a consent order entered on May 5, 1998. Id. at 740.

72 Id. The court also noted there are exceptions to this limitation on emotional distress recovery, such as when a family member suffers an injury which causes plaintiff emotional distress. Id. at 740 n.1.

73 Id. at 741.

74 Id.

75 Id.

76 Id.

77 Id.

78 Id. After ruling plaintiffs could not establish a physical injury, the court framed Plaintiffs action as one where “[t]he goods and services provided by the Jones Institute were unsatisfactory, and the Does economic expectations have been disappointed.” Id. at 743. The court noted that although plaintiffs appeared to seek recovery for a “loss involving physical harm to property,” their losses arose because the IVF procedure was unsuccessful. Id. According to the court, “[t]hese losses are neither personal nor property injuries, and are appropriately characterized as economic losses.” Id.

79 Id. at 741. Because the court ruled plaintiff lacked a physical injury and could not state a claim for negligence, the court did not analyze plaintiffs’ allegations that the manufacturer of the Human Albumin had a duty to withdraw it from the market and/or a duty to warn. Id. at 743 n.4. Also, having found no physical injury or cognizable property damage, the court stated the economic loss rule also bars recovery for purely economic harm based on negligence, when plaintiff and defendant lack privity of contract. Id. at 741. Here, there was no privity between plaintiffs and defendants, because defendants merely manufactured and distributed the potentially contaminated Human Albumin used in the IVF process. With privity lacking, the Economic Loss Rule also barred Plaintiff’s negligence recovery. Id. at 743.

80 See, e.g., Jane W. v. President of Georgetown Coll., 863 A.2d 821, 826 (D.C. 2004) (patient must show she was in the zone of physical danger and feared for her own well-being when radiology technician used syringes containing saline that were contaminated with pathogens, rather than syringes containing pain reducing medications); Hammond v. Lane, 515 N.E.2d 828, 830 (Ill. App. Ct. 1987) (to recover for NIED patient must allege and prove she was in zone of danger and feared for her own safety when psychologist improperly had sexual relations with her on four occasions while treating her for depression); see also Gihring v. Butcher, 487 N.E.2d 75, 77 (1985) (noting there is no exception to the zone of danger requirement for malpractice cases).

81 K.A.C. v. Benson, 527 N.W.2d 553, 555 (Minn. 1995).

82 Id. at 555.

83 Id.

84 Id. at 556.

85 Id.

86 Id. at 557.

87 Id. at 557-58.

88 Id. at 558.

89 Id. at 559.

90 See Doe v. Irvine Sci. Sales Corp., 7 F. Supp. 2d 737, 742-43 (E.D. Va. 1998).

91 See, e.g., Frisina v. Women and Infants Hosp., Nos. CIV.A.95-4037, 2002 WL 1288784, at *2 (R.I. Super. Ct. May 30, 2002). For discussion and analysis of these theories, including why they are insufficient to restore plaintiffs to their rightful position, see Auger, supra note 13, at 63-67; see also Howell, Shirley Darby, The Frozen Embryo, Scholarly Theories, Case Law, and Proposed State Regulation, 14 Depaul J. Health Care L. 407 (2013)Google Scholar (discussing the strengths and weaknesses of various theories of recovery); Quinn, Colleen M., Tort Liability for Lost or Destroyed Embryos, 39 Fam. Advoc. 6 (2016)Google Scholar (same).

92 Irvine Sci. Sales Corp., 7 F. Supp. 2d at 741.

93 Consol. Rail Co. v. Gottshall, 512 U.S. 532, 548-49 (1994); Frisina, 2002 WL 1288784, at *3. At least half of the country’s jurisdictions have adopted some form of bystander restrictions for stand-alone emotional distress recovery. Stein, supra note 48, § 10:35; accord Lindahl, supra note 47, § 31:28.

94 See Consol. Rail Corp., 512 U.S. at 548; Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968); Frisina, 2002 WL 1288784, at *3.

95 Frisina, 2002 WL 1288784, at *3. Although Frisina is an unpublished opinion from the from the superior court of Rhode Island, it provides a thorough review of the problem faced by both courts and plaintiffs who must address relief for loss or destruction of reproductive material. In addition, the importance of the case has been recognized by many legal scholars. At least twenty-five law review articles have discussed and cited to Frisina. See, e.g., Auger, supra note 12, at 63; Fox, supra note 20, at 172; McBride, Emma D., Note, “I'd Like My Eggs Frozen”: Negligent Emotional Distress Compensation for Lost Frozen Human Eggs, 61 B.C. L. Rev. 749, 774 (2020)Google Scholar; Reich, J. Brad and Swink, Dawn, You Can't Put the Genie Back in the Bottle: Potential Rights and Obligations of Egg Donors in the Cyberprocreation Era, 20 Alb. L.J. Sci. & Tech. 1, 58 n.340 (2010).Google Scholar

96 Frisina, 2002 WL 1288784, at *1.

97 Id.

98 Id.

99 Id.

100 Id.

101 Id. at *2

102 Id. In each case, the parties signed various consent forms, which were not relevant to the court’s discussion of plaintiffs’ NIED recovery. Therefore, discussion of those forms and agreements has been omitted here. See id. at *1-2. Although contract law often plays a role in disputes involving loss or destruction of reproductive material, the focus of this article is the common law tort of NIED. The availability of parasitic emotional distress damages under contract law is beyond the scope of this article.

103 Id. at *2.

104 Id.

105 Id. at *3. The court also noted the distinction between recovery for emotional harm alone versus recovery of emotional harm parasitic to another distinct injury. Id. at *3 n.3.

106 Id. at *3.

107 Id. The court noted that Rhode Island follows Restatement (Second) of Torts section 436A which disallows recovery for emotional disturbance alone, absent bodily harm or other compensable damage. Id. at *5 n.14.

108 Id. at *3.

109 Id. at *8.

110 Id. The court referred to the reproductive material as “pre-embryos” because they were at the “four to eight cell stage of a developing fertilized egg.” Id. at *2 & n.2.

111 Id. at *4. The court noted that most authority addressing pre-embryos and embryos deals with ownership issues. Id.

112 Id. at *3-4.

113 Id. at *4-5 (quoting Kass v. Kass, 696 N.E.2d 174, 179 (N.Y. 1998)).

114 Id. at *8.

115 Id. at *5, 8.

116 Id. at *5 (quoting Vallinoto v. DiSandro, 688 A.2d 830, 850 (R.I. 1997)).

117 Id. at *8.

118 Id. at *8, *13. Although parasitic emotional distress is not the focus of this article, it is interesting to note the court denied defendant’s motion for summary judgment for emotional distress parasitic to plaintiff’s claim for loss of irreplaceable property. See id. at *8-10. The court stated the physical loss of the pre-embryos may entitle plaintiffs to recover for parasitic emotional harm “for the physical loss of their pre-embryos rather than for the loss of the possibility of achieving pregnancy ….” Id. at *10.

119 Because the bystander approach requires plaintiff to be “closely related” to the “victim,” courts must address whether an embryo can be a victim. This requires an inquiry into the legal status of an embryo stored outside of the body. Some authors have opined that the courts must answer this question before ruling in an action for NIED based on the destruction of reproductive material. See, e.g., Auger, supra note 13, at 54 (arguing that classification of the lost or destroyed reproductive material is a necessary first step, because only after classification can courts “apply the correct body of law to such claims.”); see also Howell, supra note 91, at 411-15 (noting the different positions regarding the legal status of stored embryos and the need for clarity to guide courts). In some states, statutes have helped provide guidance to courts by classifying certain types of reproductive material, such as sperm and embryos. See, e.g., Kurchner v. State Farm Fire & Casualty Co., 858 So. 2d 1220, 1221 (Fla. Dist. Ct. App. 2003) (noting that Florida Statutes § 742.14 limits plaintiff to reasonable compensation for property loss after destruction of cryo-preserved sperm as result of cooling system failure); McQueen v. Gadberry, 507 S.W.3d 127, 138-40, 148-49 (Mo. Ct. App. 2016) (discussing Missouri statutes regarding the status of frozen pre-embryos and holding frozen pre-embryos could not constitutionally be considered children under dissolution of marriage statutes); see also Debele, Gary A. & Crockin, Susan L., Legal Issues Surrounding Embryos and Gametes: What Family Law Practitioners Need to Know, 31 J. Am. Acad. Matrim. Law. 55, 71-72 (2018)Google Scholar (discussing the increasing attempts by legislatures to afford protection to stored embryos); Dostalik, Polina M., Embryo “Adoption”? The Rhetoric, the Law, and the Legal Consequences, 55 N.Y.L. SCH. L. REV. 867, 876 (2010/11)Google Scholar (discussing the Louisiana and Missouri statutes that “define the legal status of an embryo as equal to a person”).

120 Frisina, 2002 WL 1288784, at *4, *8.

121 See id. at *4-5, *8.

122 Id. at *8.

123 Witt v. Yale-New Haven Hosp., 977 A.2d 779, 792 (Conn. Super. Ct. 2008).

124 Id. at 792.

125 Id. at 787 n.3.

126 Id. at 787-88 n.4. But see Frisina v. Women and Infants Hosp., Nos. CIV.A.95-4037, 2002 WL 1288784, at *10 (R.I. Super. Ct. May 30, 2002) (“This court finds that the plaintiffs are seeking to recover for the physical loss of their pre-embryos rather than for the loss of the possibility of achieving pregnancy ….”).

127 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47(b) (Am. Law. Inst. 2012).

128 Mower v. Baird, 2018 UT 29, 422 P.3d 837, 854 (Utah 2018) (recognizing the continued development of NIED law and acknowledging the Restatement (Third) of Torts as reflecting the current evolutionary trend).

129 Id.

130 Id. at 854.

131 See id. at 854-55. Indeed, section 47 embodies the trend to permit recovery for emotional harm alone when the emotional harm is especially likely to result from defendant’s negligence based on the special relationship or undertaking between plaintiff and defendants. See, e.g., Taylor v. Baptist Med. Ctr., Inc., 400 So. 2d 369, 374 (Ala. 1981) (quoting Stead v. Blue Cross-Blue Shield, 346 So. 2d 1140, 1143 (Ala. 1977)) (“[B]reach of [contractual] duty will necessarily or reasonably result in mental anguish or suffering….”); Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995) (“the nature of th[e] relationship imposes on the defendant a duty to refrain from conduct that would foreseeably result in emotional harm to the plaintiff.”); Burgess v. Superior Court, 831 P.2d 1197, 1204 (Cal. 1992) (finding plaintiff was “permitted to recover these damages as a result of the breach of the duty of care arising from the physician-patient relationship”); Witt, v. Yale-New Haven Hosp., 977 A.2d 779, 791 (Conn. Super. Ct. 2008) (finding ART practitioners owed a duty to aspiring parents); Corgan v. Muehling, 574 N.E.2d 602, 607 (Ill. (1991) (finding a therapist/patient special relationship encompasses a duty to refrain from causing emotional harm to patient); Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa 1990) (noting an exception to the rule requiring physical impact where there is a contract and “the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm”); Menorah Chapels v. Needle, 899 A.2d 316, 324 (N.J. Super. Ct. App. Div. 2006) (citing Spiegel v. Evergreen Cemetery Co., 186 A. 585, 588 (N.J. 1936)) (finding a contractual relationship permits NIED recovery if, at the time of contracting, parties understood emotional harm was likely to flow from breach); Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 28 (N.Y. App. Div. 2001) (finding ART practitioners owed a duty to aspiring parents); Curtis v. MRI Imaging Servs. II, 956 P.2d 960, 963 (Or. 1998) (finding a likelihood of adverse emotional reaction in medical context supports NIED recovery by patient); Toney v. Chester Cty. Hosp., 36 A.3d 83, 95 (Pa. 2011) (NIED supported by relationship between patient and medical professionals in field of obstetrics).

132 Restatement (Third) of Torts: Liability For Physical and Emotional Harm § 47(b) (Am. Law. Inst. 2012).

133 See Perry-Rogers, 723 N.Y.S.2d at 28.

134 Fox, supra note 20.

135 Witt, 977 A.2d at 787 n.3.

136 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 cmt. F (Am. Law. Inst. 2012).

137 Id. § 47(b).

138 Id. § 47 cmt. a.

139 Id. § 47 cmts. A, c, f; accord Dobbs, supra note 11, at 49 (arguing that the traditional barriers to stand alone NIED recovery “are inappropriate both when the defendant has a special relationship to the plaintiff and when the defendant has undertaken a duty of care that implicates the plaintiffs’ emotional well-being.”).

140 RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47 cmts. B, c, f (AM. LAW. INST. 2012). The Restatement authors stated “[t]his section [47] replaces Section 436A of the Restatement Second of Torts” which bars recovery for emotional disturbance alone, without bodily harm or compensable damages. Id. § 47 cmt. a; see also Dobbs, supra note 11, at 69 (concluding the traditional barriers to stand-alone NIED recovery do not apply when defendant engages in an undertaking or has a special relationship with plaintiff.).

141 The Restatement notes, liability is not a question of whether the emotional harm was foreseeable to Defendants. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47 cmt. I (AM. LAW. INST. 2012) (noting “[F]oreseeability cannot appropriately be employed as the standard to limit liability for emotional harm”, and acknowledging that section 47 is an exception to the “general rule that negligently caused pure emotional harm is not recoverable even when it is foreseeable.”).

142 Id. § 47. Cmt. f. (discussing the lack of clarity in this area and the absence of clear guidelines). One scholar noted: “When courts address liability for NIED, they are really asking whether and when liability for breach of a preexisting duty — grounded either on the prospect of a physical injury or on the existence of a preexisting relationship between the parties — should extend to encompass the infliction of emotional distress.” Keating, supra note 21, at 1135 (arguing that NIED is in fact a question of proximate cause rather than duty).

143 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 cmt. f (Am. Law. Inst. 2012).

144 See Dobbs, supra note 11, at 51-57.

145 Id. at 56; see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 cmt. f (Am. Law. Inst. 2012). (“Typically, the undertaking or relationship is one in which serious emotional harm is likely or where one person is in a position of power or authority over the other and therefore has greater potential to inflict emotional harm.”).

146 Dobbs, supra note 11, at 49. However, Professor Dobbs noted two important limitations: First, courts are reluctant to extend the scope of any duty beyond the undertaking or relationship. Id. at 56. For example, Dobbs noted that is understandable that a doctor or therapist “may undertake care for the patient’s well-being, including emotional well-being, but lawyers drafting business documents probably do not undertake any such thing.” Id. at 57. Second, a Defendant can only be liable to those who are “covered” by his undertaking or relationship. Id. To illustrate the second limitation, Professor Dobbs used an example of a case against an obstetrician when a child suffered brain injury because of the obstetrician’s negligence. Professor Dobbs stated, “the doctor presumably undertook to care for the mother and child, but not for the father.” Id.

147 Toney, v. Chester Cty. Hosp., 36 A.3d 83, 95. (Pa. 2011).

148 Dobbs, supra note 11, at 49; see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 cmt. f. (AM. LAW. INST. 2012) (“Typically, the undertaking or relationship is one in which serious emotional harm is likely or where one person is in a position of power or authority over the other and therefore has greater potential to inflict emotional harm.”).

149 At the time of this article’s publication, less than twenty cases have cited to section 47(b), and none of those cases involved ART practitioners. See, e.g., cases cited supra note 22. However, as will be discussed later in this article, see infra Part IV.B.2, a few cases predating the 2012 publication of the Restatement (Third) of Torts used the relationship between aspiring parents and ART practitioners to create a duty of care which supported NIED liability. However, these cases were from jurisdictions that did not use the traditional barriers to stand-alone NIED recovery. See, e.g., Witt v. Yale-New Haven Hosp., 977 A.2d 779, 784, 791 (Conn. Super. Ct. 2008) (finding ART practitioners owed a duty to aspiring parents); Perry-Rogers v. Obasaju, 723 N.Y.S.2d. 28, 29, 30 (N.Y. App. Div. 2001) (same). Also, because Restatement section 47 embodies the current trend in the law to permit recovery for emotional harm when it is especially likely based of plaintiff’s relationship or undertaking with defendant, other cases have used a similar approach. See, e.g., Mower v. Baird, 2018 UT 29, 422 P.3d 837, 854-855 (Utah 2018).

150 Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011).

151 Id. at 792.

152 Id. at 819.

153 Id.

154 Id.

155 Id.

156 Id.

157 Id. at 792.

158 Id.

159 Id.

160 Id.

161 Id. After recognizing the special relationship between plaintiff and his physician, the court noted it was next tasked with determining the scope of that duty, especially as it relates to emotional distress. Id. at 793. The court acknowledged the importance of foreseeability when addressing the scope of the duty, and stated the foreseeability of harm “is determined, in large part, by the nature of the relationship between the parties” and the nature of the undertaking. Id. at 794. The court stated that this is the same approach courts use to determine the scope of duty in physical injury cases, and the approach is just as helpful when used in emotional injury cases. See id. at 808.

162 Id. at 801-02.

163 Id. at 810-11. The court also added a third requirement for recovery: that the defendant’s breach must, in fact, cause serious emotional distress. Id.

164 Id. at 811.

165 Id. at 813.

166 Id.

167 Id. at 813-14.

168 Id. at 813.

169 Id. at 811.

170 Id. at 814.

171 Id. at 815-17. As to the third requirement added by the court, that plaintiff actually prove she suffered serious emotional distress, the distress must be verifiable. Id. at 817. The question of whether plaintiff has established she in fact suffered such distress is one for the jury, and recovery should not be barred simply because the harm is difficult to verify. See id. at 817-18. Based on the above, the seriousness of the distress has both objective and subjective aspects: the defendant’s breach must objectively be especially likely to cause serious emotional harm to establish the second requirement, and plaintiff must subjectively establish that she did, in fact, suffer such harm in order to satisfy the third requirement for recovery. Id. at 815-16.

172 Id. at 814.

173 Id. at 820.

174 Id.

175 Id. Plaintiff also proved he did, in fact, suffer serious distress based on his subsequent treatment for depression, loss of his job, addiction to drugs, and deteriorating family relationships. Id.

176 Mower v. Baird, 2018 UT 29, 422 P.3d 837, 856, 863 (Utah 2018) (adopting section 47, in part, when therapist’s negligence resulted in false memories of abuse by father).

177 Id. at 840-41.

178 Id. at 842.

179 Id. at 841.

180 Id. at 843.

181 Id. at 842-43.

182 Id. at 843.

183 Id. at 846. To find this limited traditional duty, the court applied the following factors: in (1) whether the defendant’s allegedly tortious conduct consists of an affirmative act or merely an omission [citation omitted]; (2) the legal relationship of the parties, (3) the foreseeability or likelihood of injury [citation omitted]; (4) “public policy as to which party can best bear the loss occasioned by the injury,” [citation omitted]; and (5) “other general policy considerations.” Id. at 843 (quoting Jeffs ex rel. B.R. v. West, 275 P.3d 228, 230 (Utah 2012)).

184 Id. at 844.

185 Id. at 856. The court noted it would depart from the Restatement section 47(b) approach in two areas: first, the court would require “severe” distress, rather than “serious” distress; second, a duty to refrain from causing another emotional harm would not arise unless there first existed a “traditional duty of reasonable care.” Id. The court also viewed the inquiry as to whether public policy weighed against recognizing a duty as a third requirement. Id. at 856-57.

186 Id. at 859.

187 Id. at 860-61.

188 Id. at 860.

189 Id. at 860-61.

190 Id. at 860.

191 Id. at 860-61.

192 Id. at 861.

193 Id. at 858.

194 Id. at 861-62.

195 Id. at 841.

196 Am. Soc’y for Reprod. Med., Assisted Reproductive Technology: A Guide for Patients, at 3, 12 (2015) [hereinafter Guide for Patients], http://www.fertilityanswers.com/wp-content/uploads/2016/04/assisted-reproductive-technologies-booklet.pdf [https://perma.cc/WTW9-2P78]. The medical process is even more complex when patients chose to have embryos created and cryopreserved for later IVF. See id. at 4-12.

197 Id. at 3.

198 Id. at 20.

199 Id.

200 See Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The doctor-patient relationship, in The Law of Torts § 285 (2d ed. June 2020 Update) (“In the usual case, the doctor-patient relationship is formed by the doctor's undertaking to act for the benefit of the patient.”); see, e.g., Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 794 (D.C. 2011) (“Once the defendant enters into a relationship with the plaintiff, however, a corresponding duty of care arises.”); see also Bd. of Trs. of Univ. of D.C. v. DiSalvo, 974 A.2d 868, 871 n. 1 (D.C. 2009) (quoting Workman v. United Methodist Comm., 320 F.3d 259, 265 (D.C. Cir. 2003)) (“[T]he relationship between the parties is the key to determining whether the defendant had a legally enforceable duty to the plaintiff.”); Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (“the special relationship between physician and patient and imposes upon the former a great duty of fidelity”).

201 Courts have recognized such a relationship. Witt v. Yale-New Haven Hosp., 977 A.2d 779, 788-89 (Conn. Super. Ct. 2008) (finding ART practitioners owed a duty to aspiring parents based on special relationship); Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 29 (N.Y. App. Div. 2011) (same).

202 Feliciano, Tanya, Note, Davis v. Davis: What about Future Disputes, 26 Conn. L. Rev. 305, 308-09 (Fall 1993)Google Scholar; see also authorities cited infra note 241.

203 Guide for Patients, supra note 196, at 17.

204 Courts are reluctant to extend the scope of any duty beyond the undertaking or relationship. Dobbs, supra note 11, at 56. For example, Professor Dobbs noted that is understandable that a doctor or therapist “may undertake care for the patients well-being, including emotional well-being, but lawyers drafting business documents probably do not undertake any such thing.” Id. at 57; see also Witt, 977 A.2d at 791 n. 8 (“Obviously, the contours of the duty owed will be more fully defined as different cases with different facts and allegations are adjudicated…. the duty of care owed by an ART practitioner to its parent-patients is broadly analogous to the duty a mortician owes to the immediate family members of a deceased. At a minimum, this includes mitigating the potential for conduct that would foreseeably result in an even greater emotional injury than the circumstances that brought them to the practitioner's office in the first place by notifying or consulting with the parent-patients of developments or decisions that affect their ability to conceive a child together.”)

205 See supra notes 20, 141, and accompanying text.

206 Witt, 51 Conn. Supp. at 164, 977 A.2d at 786 (the traditional barriers to stand-alone NIED recovery, such as the requirement of physical injury/impact or zone of danger, did not bar plaintiffs’ NIED recovery, because they are not used in Connecticut); Perry-Rogers, 723 N.Y.S.2d at 19 (traditional barriers not used in New York).

207 Witt, 977 A.2d at 784-85 (foreseeability is the court’s primary focus); Perry-Rogers, 723 N.Y.S.2d at 28-29, (breach of duty causing emotional harm is required; here, harm was foreseeable); see also Del Zio v. Presbyterian Hosp., No 74 Civ. 3588 (CES), 1978 U.S. Dist. Lexis 14450, at *14 (S.D.N.Y. Nov. 9, 1978) (in claim for intentional infliction of emotional distress, the defendants’ deliberate conduct “predictably caused severe emotional distress.”).

208 Witt, 977 A.2d at 781.

209 Id. at 781.

210 Id.

211 Id. at 782.

212 Id. at 785.

213 Id. at 782.

214 Id. at 782.

215 Id.

216 Id. at 789–90.

217 Id. at 785 (“As a threshold matter, the court must now resolve the question as to whether the anxiety or fear attendant upon the loss of an opportunity… to potentially conceive a child is sufficiently foreseeable to support a claim of negligent infliction of emotional distress.”). The court based its conclusion on the foreseeability to defendants of plaintiff’s serious emotional harm. Id. at 784-85 (primary focus is on the question of foreseeability).

218 Id. at 788; see also Del Zio, v. Presbyterian Hosp., No. 74 Civ. 3588 (CES), 1978 U.S. Dist. LEXIS 14450, at *1, *14 (S.D.N.Y. Nov. 14, 1978) (recognizing the “substantial certainty that severe emotional distress would follow” defendants’ destruction of plaintiffs’ fertilized ova).

219 Witt, 977 A.2d at 786, 791.

220 Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 29 (N.Y. App. Div. 2001).

221 Id.

222 Id.

223 Id.

224 Id.

225 Id. at 29-30; see also Del Zio, v. Presbyterian Hosp., No. 74 Civ. 3588 (CES), 1978 U.S. Dist. LEXIS 14450, at *14 (S.D.N.Y. Nov. 14, 1978). (upholding intentional infliction of emotional distress verdict against hospital and physicians when Plaintiffs’ fertilized ova were intentionally destroyed without their knowledge or consent “which predictably caused severe emotional distress.”). The court also required evidence “sufficient to guarantee the genuineness of the claim.” Perry-Rogers 723 N.Y.S.2d at 30.

226 See Witt v. Yale-New Haven Hosp. 977 A.2d 779, 794 (Conn. Super. Ct. 2008); Perry-Rogers, 723 N.Y.S.2d at 29-30.

227 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47(b) (Am. Law Inst. 2012).

228 The Restatement notes, liability is not a question of whether the emotional harm was foreseeable to defendants. Id. § 47 cmt. i (noting “[F]oreseeability cannot appropriately be employed as the standard to limit liability for emotional harm”, and acknowledging that section 47 is an exception to the “general rule that negligently caused pure emotional harm is not recoverable even when it is foreseeable.”). Nor is it a question of whether the distress has caused physical consequences. Id. cmt. j (noting that Section 47 supports stand-alone NIED recovery in the absence of physical consequences, and stating “[t]he requirements that the harm be serious, that the circumstances of the case be such that a reasonable person would suffer serious harm, and that there be credible evidence that the plaintiff has suffered such harm better serve the purpose of screening claims than a requirement of physical consequences.”); see also id. reporters note for cmt. j (listing cases where courts permit recovery for emotional harm without physical consequences).

229 Id. § 47 cmt. i.

230 Feliciano, supra note 202, at 309.

231 See, e.g., Witt, 977 A.2d at 785, 788.

232 See, e.g., Del Zio v. Presbyterian Hosp. No. 74 Civ. 3588 (CES), 1978 U.S. Dist. LEXIS 14450, at *1-2, *4 (S.D.N.Y. Nov. 14, 1978).

233 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47(b) cmt. j (Am. Law Inst. 2012).

234 Id. § 47 cmt. b, c, f.

235 Restatement (Second) of Torts § 436A cmt. b (1965); accord Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 545-46. (1994); Toney v. Chester Cty. Hosp., 36 A.3d 83, 97 (Pa. 2011); see also Freeman v. Kansas State Network, Inc., 719 F. Supp. 995, 1001 (D. Kan. 1989) (noting the physical injury rule prevents recovery for distress that is “ a common experience of life and is usually trivial.”).

236 Restatement (Second) of Torts § 436A cmt. b; see also Ely v. Hitchcock, 58 P.3d 116, 125 (Kan. Ct. App. 2002) (noting that one reason for the impact rule is to prevent recovery for “distress commonly experienced in everyday life.”).

237 Elliott v. Elliott 58 So. 3d 878, 880-81 (Fla. Dist. Ct. App. 2011).

238 See, e.g., id. at 881 (noting that the impact rule is used “to assure the validity of claims for emotional and psychological harm.”); Restatement (Second) of Torts § 436A cmt. b (1965).

239 Consol. Rail Corp., 512 U.S. at 545; see also Elliott, 58 So. 3d at 880-81 (noting the absence of the impact rule would “open the floodgates for fictitious and speculative claims.”); Restatement (Second) of Torts § 436A cmt. b (1965).

240 See, e.g., Bruscato v. O’Brien, 705 S.E.2d 275., 280 (Ga. Ct. App. 2010); Shuamber v. Henderson, 579 N.E.2d 452, 455 (Ind. 1991).

241 Consol. Rail Corp., 512 U.S. at 545.

242 See, e.g., Witt v. Yale-New Haven Hosp., 977 A.2d 779, 788 (Conn. Super. Ct. 2008) (noting the significant emotional stress that routinely accompanies ART procedures and concluding defendants were aware that plaintiffs’ lost opportunity to conceive a child together could reasonably result in severe emotional distress); Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 29 (N.Y. App. Div. 2011) (recognizing the severity of emotional harm when plaintiffs were “deprived of the opportunity of experiencing pregnancy, prenatal bonding and the birth of their child, and by their separation from the child by more than four months after his birth.”).

243 Madeira, Jody Lyneé, Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, 71 MD. L. REV. 339, 347–48 (2012)Google Scholar (“IVF patients experience “extreme emotional distress” before and during infertility diagnoses….”); Bender, supra note 10, at 76 (“In addition to any physical harms that arise from ART mistakes, the emotional distress is unimaginable.”); Panitch, supra note 10, at 573 (“Any spouse ultimately denied the chance to have a child through IVF would probably suffer considerable emotional stress.”); Davidoff, Bill E., Frozen Embryos: A Need for Thawing in the Legislative Process, 47 SMU L. REV. 131, 153 (1993)Google ScholarPubMed (noting “patients encounter IVF programs at a time when they are experiencing a tremendous amount of psychological stress and emotional trauma caused by infertility”).

244 Madeira, supra note 243, at 348.

245 Feliciano, supra note 202, at 308.

246 Id. at 309; Madeira, supra note 244, at 347.

247 Madeira, supra note 243, at 348.

248 See, e.g., Witt v. Yale-New Haven Hosp., 977 A.2d 779, 788 (Conn. Super. Ct. 2008) (noting the significant emotional stress that routinely accompanies ART procedures and concluding defendants were aware that plaintiffs’ lost opportunity to conceive a child together could reasonably result in severe emotional distress); Heide, supra note 8, at 71 (“When negligence in the ART process does lead to a frustration of the couple's reproductive intent, even without physical injury, … victims of ART malpractice suffer a significant emotional injury.”); Langley & Blackston, supra note 11, at 191 (“any heightened emotional stress that may exist when IVF is being initiated still would exist after the parties actually undergo the IVF process and possibly suffer failed attempts at fertilization.”); Panitch, supra note 9, at 573 (“Any spouse ultimately denied the chance to have a child through IVF would probably suffer considerable emotional stress.”). Of course, the emotional distress would be exacerbated in cases where the lost or destroyed reproductive material represented plaintiffs only chance to ever become a parent, as is true in situations where cancer or other circumstances have rendered the plaintiff infertile. See Witt, 977 A.2d at 788 (“The court believes it was reasonable for the defendant to appreciate the level of fear and anxiety created by the loss of the only opportunity to potentially conceive a child with one’s spouse could likely result in emotional distress severe enough that it might result in illness or bodily harm.”).

249 See Witt, 977 A.2d at 788.

250 Del Zio v. Presbyterian Hosp., No. 74 Civ. 3588 (CES), 1978 U.S. Dist. LEXIS 14450, at *1 (S.D.N.Y. Nov. 14, 1978); see also Witt, 977 A.2d at 788 (aspiring parents’ emotional distress was “predictably severe”).

251 Del Zio, 1978 U.S. Dist. LEXIS 14450, at *1.

252 Id. at *2-3.

253 Id. at *3.

254 Id.

255 Id.

256 Id. at *1.

257 Id. at *14; see also Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 28-29 (N.Y. App. Div. 2011) (recognizing the severity of emotional harm when plaintiffs were “deprived of the opportunity of experiencing pregnancy, prenatal bonding and the birth of their child, and by their separation from the child by more than four months after his birth.”).

258 Further, courts have noted that any concern over trivial or feigned distress is better handled not by a complete bar of plaintiff’s action, but instead by the requirement that plaintiff must still establish causation and damages. See, e.g., Toney v. Chester County Hosp., 36 A.2d 83, 99 (Pa. 2011).

259 Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 545 (U.S. 1994) (if physical injury were not required, court could be inundated with a “flood of relatively trivial claims”); Witt v. Yale-New Haven Hosp., 977 A.2d 779, 785 (Conn. Super. Ct. 2008) (same).

260 Only those in the special relationship or party to the undertaking may be plaintiffs. Witt, 977 A.2d at 791-92 (stating there is natural boundary of just two claimants in an NIED claim against ART practitioners).

261 One may argue that others could be potential plaintiffs, such as aspiring grandparents, siblings, aunts, uncles, etc. who suffer emotional distress when learning of the loss or destruction; however, such individuals are not in a special relationship/undertaking with the ART practitioners. As to who may sue, the scope of the special relationship or undertaking itself establishes the limit. Only those in the special relationship or party to the undertaking may be plaintiffs. See id. (stating there is natural boundary of just two claimants in an NIED claim against ART practitioners). A Defendant can only be liable to those who are “covered” by his undertaking or relationship. Dobbs, supra note 11, at 57. To illustrate the second limitation, Professor Dobbs used an example of a case against an obstetrician when a child suffered brain injury because of the obstetrician’s negligence. Professor Dobbs stated, “the doctor presumably undertook to care for the mother and child, but not for the father.” Id.; see also Adams v. Cavins, No. SB1065595, 2003 WL 22456117, at *1 (Cal. Ct. App. Oct. 30, 2003) (wife cannot state a claim for emotional distress against husband’s physician when prescribed medication reduced husband’s ability to produce sperm for IVF procedure); Dehn v. Edgecombe, 865 A.2d 603, 614-15 (Md. 2005) (physician did not owe a duty to wife who became pregnant after husband’s vasectomy); Cohen v. Cabrini Med. Ctr., 730 N.E.2d 949, 952 (N.Y. 2000) (wife cannot recover for medical malpractice when surgery to improve husband’s fertility actually decreased his fertility, requiring wife to undergo IVF to become pregnant). But see Witt, 977 A.2d at 794 (ART practitioners owe duty to husband after practitioners discarded wife’s stored ovarian tissue); Mower v. Baird, 2018 UT 29, 422 P.3d 837, 863 (Utah 2018) (nonpatient parent may recover NIED against therapist who treated minor daughter).

262 Witt, 977 A.2d at 791-92 (stating there is natural boundary of just two claimants in an NIED claim against ART practitioners).

263 Id.at 791.

264 Id. at 791.

265 Toney v. Chester Cty. Hosp., 36 A.3d 83, 99 (Pa. 2011) (“we acknowledge that severe emotional distress can arise equally from situations without any physical impact.”).

266 See supra notes 226 to 239 and accompanying text.

267 See, e.g., Toney, 36 A.3d at 99 (noting that genuineness is guaranteed not by traditional barriers but by requiring plaintiff to prove causation and damages.).

268 Id. at 99.

269 Courts have recognized that that the physical injury/impact requirement should not be applied when the policies behind it would not be violated by permitting recovery for emotional injury. See, e.g., Elliott v. Elliott, 58 So. 3d 878, 881 (Fla. Dist. Ct. App. 2011) (“the impact rule is not an inflexible command, and does yield to narrow exceptions ‘in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.’”); Bruscato v. O’Brien, 705 S.E.2d 275, 280 (Ga. Ct. App. 2010) (impact rule does not bar NIED recovery in medical malpractice case where policy concerns behind the rule are not present).