Dov Fox, Professor of Law at the University of San Diego.

After thousands of dollars of in vitro fertilization treatments and nine months of pregnancy, a New York couple was forced to give up the twins they birthed. It turns out CHA Fertility Center, the Los Angeles clinic where the couple sought IVF treatment, mixed up the embryos of three patients, resulting in two of the couples having to give up children to their genetic parents. Now, those parents are suing.

Dov Fox, professor of law at the University of San Diego and the director of the school's Center for Health Law Policy & Bioethics, said the law has not caught up with reproductive technology and victims of this type of medical malpractice aren't left with many legal options. Yet, legal frameworks are out there, Fox said. Judges and lawmakers just might need to look outside the U.S.

Answers have been edited for length and clarity.

In an op-ed you wrote for Wired, you mention that there's a regulatory vacuum around reproductive malpractice. What does that look like? There are no state or federal laws that incentivize reproductive professionals to adopt the safe and reliable methods that most patients are likely to expect, especially in the area of assisted reproduction. Not to say that this is the Wild West, as it's sometimes called, it's certainly not that. These are highly trained professionals, scientists and doctors who are generally well-credentialed, and most are part of professional organizations, like the American Society for Reproductive Medicine, that does set forth best practices.

So this is less cowboy venture than fragmented cartel of mom and pop shops. Industry groups like the College of American Pathologists visit fertility clinics every couple of years. Yet, any oversight on the private side is voluntary; there's no enforcement. There's no real carrot for adopting best practices or stick for ignoring or lying about them.

Some experts say that many cases of reproductive malpractice go unreported. Why is that?

There are some people who turn to assisted reproduction for reasons that they don't wish to make public. Matters having to do with their sexual lives, fertility status, the makeup of their family, and the genetic relationships are among them. Even if they were to become aware of a mix up like the ones recently in the news, they might have second thoughts about bringing suits in a way that would identify them as having sought the underlying treatment in the first place.

There's also no small measure of stigma against those who would complain about their reproductive outcomes. Some people feel you get what you get, and you don't get upset, or if you have a child, it's seen as an existential insult to file a lawsuit having anything to do with his or her birth or existence. Additionally, no one usually tests children when they are born for genetic relatedness. There's rarely occasion for parents to realize that anything happened that wasn't what they had a reason to expect.

Finally, there are minimal avenues to vindicate their reproductive interest. Who would they complain to? Hospitals? State medical boards? The courts? The people who would act as referees to remedy reproductive efforts gone awry either aren't there, don't do much, or have suggested that the avenues for recourse are often too slight to be worth the risk of an expensive and emotional process of bringing suit.

So, what recourse do patients have?

About half of the states in the country bar what's clumsily referred to as wrongful birth suits, or when a fetal misdiagnosis or a failure to properly screen a pregnant woman results in a birth of a child with a debilitating condition. Nowadays, you see suits from misrepresented sperm or egg donors, ones who weren't tested reliably or fully. In much of the country, courts or legislatures have said that parents have no right to bring suit when a professional gives parents a child different than they had come to expect. That's one trend in this country that does guide much of litigation in this area.

There's also considerable worry about fraud and floodgates among judges in these cases. The worry about fraud is that people can say whatever they want about what their reproductive plans had been, but it might be it didn't work out the way they wanted and now they're looking for some help fronting the costs of raising a child. And to recognize a right to recover for the wrongful frustration of those plans would invite chance suits. One distinctive feature of these reproductive injuries is the characteristic absence of a tangible form of harm, like a broken bone or depleted bank account. These kinds of physical or economic harms are thought to be more serious, but also an undeniable manifestation of a real or substantial injury. To recognize the intangible loss of this reproductive kind as injuries under the law, so the concern goes, might unduly burden the courts with too many people who can simply claim a harm that is not in fact real or serious enough to warrant the judiciary's attention.

There are now some models to look at in other countries for people who say its too squishy to fathom the character of these injuries and too speculative to come up with damages awards. The recent ruling in the Singapore Supreme Court, the justices, though admitting it was one of the hardest cases they had seen in court history, found a way to indicate the nature of the loss. That's a decision that American judges can look to represent how to handle these cases in a way that doesn't resign us to throwing up our hands and chalking it up to cosmic injustice or science outpacing the law.