Devastated by the termination of their attempt to have a baby through in vitro fertilization (IVF), John and Doris Del-Zio decided to sue those they considered responsible. After a multi-year odyssey, they won their case, but the Del-Zios received only a fraction of the damages they sought.
Worried About the Future of Research
A few months after the failure of their IVF attempt in September 1973, the Del-Zios were back in their Florida home and trying unsuccessfully to get on with their lives. Then John received phone calls from two doctors involved in the attempt: William Sweeney, who had surgically removed Doris’ egg; and Landrum Shettles, the IVFpioneer who had tried to fertilize the egg before his experiment was halted by Columbia-Presbyterian Hospital administrator Raymond Vande Wiele. Both doctors were concerned that, if the Del-Zios didn’t seek to punish those responsible for the disrupted attempt, American medical institutions would refrain from pursuing IVFresearch.
Suing to Help Other Families
John was not the suing type, and Doris was reluctant to revisit the painful incident, although she continued to suffer depression and distress. But the doctors convinced them that if they didn’t bring the suit and show that IVF was a viable procedure that, in the Del-Zios’ case, had been unjustly terminated, research in the field might be crippled. Doris, still angry at what had been done to her, agreed. After all, maybe Doris’ daughter from her first marriage might needIVF to get pregnant some day. As she would recall, the lawsuit gave her “a new goal in life. And that was to get this procedure available for women who needed it, and wanted it, here in the United States.” The Del-Zios hired an attorney, Michael Dennis, who had once represented Shettles, and in the summer of 1974, they sued Vande Wiele, Columbia University, and Columbia-Presbyterian Hospital for intentional infliction of emotional distress. The Del-Zios sought a total of $1.5 million in damages; two-thirds for Doris’ distress, and one-third for John’s.
Doris Del-Zio Takes the Stand
After multiple delays, the trial began on July 17, 1978, in Courtroom 312 of Manhattan’s federal district court. Arriving that day, Doris was stunned by the crowd outside the courthouse. As she recalled, “The whole street was closed off. There were TV trucks and cameras all over the place. There were people running after me. I didn’t know where they were coming from. It was like a mob scene.” The impending arrival of the world’s first test tube baby in England had raised the profile of the Del-Zio case exponentially, and interest would remain intense, with the New York Daily News running headlines like: TEST-TUBE MA’S SPIRIT WAS DESTROYED ALONGWITH THE EMBRYO. Jury selection proceeded quickly, with a group of four women and two men impaneled, and Doris took the witness stand that first afternoon, quickly coming under fire from the three defense attorneys. Over the next few days, they grilled her mercilessly, trying to get Doris to concede that Shettles was engaged in “rash experimentation” that could never have produced a child. But Doris stuck to her story. Vande Wiele had not halted an experiment, she simply explained, “that was my baby.”
A Shifted Attack
The world’s first test tube baby, Louise Brown, was born on the seventh day of the Del-Zio trial, and even though Judge Charles Stewart would instruct the jury to disregard that fact, it required a major shift in defense strategy. No longer could they argue that IVFwas impossible, a fool’s dream. It had happened in England, so why not America? The defense team’s tactics shifted to portraying Shettles as incompetent, someone who never could have personally created a test tube baby, even if it was theoretically possible. They assailed his sloppy recordkeeping and brought in a witness to attest that he had not incubated the Del-Zio egg properly. Arguments wrapped up on August 17, and that afternoon, the jury began 13 hours of deliberations.
A Small Victory
At 7:30pm on August 18, the parties were summoned to hear the verdict. The jury found for the Del-Zios; Vande Wiele, Columbia, and Columbia-Presbyterian had engaged in behavior “utterly intolerable in a civilized community.” Doris felt vindicated, while John considered it a case of David beating Goliath. But the victory was hardly complete; the jury had awarded a mere fraction of the amount sought: $50,000 for Doris’ damages, and just $3 to John.
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