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What Happens When the Fertility Clinic Screws Up?

By Richard Dahl on July 23, 2019

Imagine the disappointment.

You and your spouse have tried unsuccessfully for years to produce a child. Finally, you take the next step and pay handsomely for the services of a reputable fertility clinic.

One day you receive news that leaves you ecstatic: Confirmed pregnancy!

Then, on delivery day, joy turns to confusion — and then to anger — when you learn that your new baby can’t possibly be yours. Someone screwed up.

Wrong Sex, Wrong Race

That’s the scenario that led a Queens couple to file suit in the Eastern District of New York on July 8, and it’s one that apparently occurs more frequently than you might guess.

In the case of the Queens couple, the alleged error was really a double whammy because it involved twins. The plaintiff couple in the suit (identified in the July 1 complaint by their initials — the woman is A.P. and the man is Y.Z.), traveled to Los Angeles in early 2018 to receive the services of CHA Fertility Center, which billed itself as “the mecca of reproductive medicine.”

Y.Z. provided sperm for his wife’s eggs, launching an effort to achieve fertilization in vitro. An initial effort to achieve pregnancy with the transfer of a female embryo failed, so the clinic thawed two more female embryos and transferred them both.

Subsequent sonograms began to cast doubt, however, when they appeared to show that the fetuses inside her were boys. When A.P. delivered in March, the couple saw that not only were the babies indeed not girls; they were also not of Asian descent, as A.P and Y.Z are. Furthermore, subsequent DNA testing showed that the newborns weren’t related to each other and were, in fact, the offspring of two other CHA couples.

The two boys were given to their proper parents and the Queens couple sued for medical malpractice and negligence, accusing the clinic of misplacing their two female embryos. Alas for CHA Fertility Center, that would not be the last of their new legal challenges: The parents of one of the boys born to the Brooklyn couple also sued, claiming they have suffered emotionally and physically from the screw-up.

A Lack of Regulation

Nearly 69,000 babies were conceived in 2017 via in vitro fertilization or similar technologies — about 1.7% of the total births that year, according to the Centers for Disease Control and Prevention. But as law professor Dov Fox wrote recently in Wired, these procedures are not well regulated. “States require hospitals to report any surgery mistakenly performed on the wrong body part or patient, but no one tracks these errors in family planning services,” said Fox, who is the director of the Center for Health Law Policy and Bioethics at the University of San Diego. “… All we know for sure is that these mix-ups have happened before — and there still aren’t any rules or constraints to keep them from occurring again.”

Certainly, there is plenty of anecdotal evidence to suggest that people who are considering fertility clinics should be aware of these possibilities. Bungled procedures in fertility clinics are not uncommon.

In April, a British couple sued a now-defunct Connecticut fertility clinic for allegedly messing up the procedure that resulted in the birth of a child that is not genetically related to them.

Last year, a Pennsylvania couple sued a Delaware fertility clinic, claiming that it mistakenly destroyed their frozen embryos, causing them mental anguish.

In 2017, two couples sued a New York fertility clinic on the grounds of inadequate screening after two children born eight years earlier developed genetic abnormalities that were traced to donor eggs

On the same weekend in 2018, mechanical malfunctions at two fertility clinics caused some 5,000 frozen embryos to be destroyed, prompting a raft of lawsuits. There was just one problem for the plaintiffs, as the University of San Diego’s Fox points out in Vox: “(H)owever egregious the transgression or profound the suffering, no statute or doctrine says these injuries matter, legally speaking. So judges accept reproductive health care failures as part of modern life, beyond their power to address.”

And that’s precisely what happened in April when a state appeals court in Ohio upheld a lower-court ruling denying plaintiffs’ wrongful-death lawsuit because the 4,000 embryos that were lost in the malfunction at a Cleveland clinic were not people.

While the chances for legal success against negligent clinics are slim, according to Fox and others, there may be hope for the future: There is growing momentum — at least in legal academia — for adoption of a “new tort” that would cover fertility-clinic missteps as medical-malpractice does not. 

But since it does not yet exist, you should do everything you can on the front end to minimize the likelihood of a disappointing outcome. A good source to help you in that effort is an organization called FertilityIQ, created by Jake and Deborah Anderson-Bialis in 2016 after their own emotional experience with fertility clinics. Fertility IQ is an online platform designed to help people navigate their ways through the maze via information shared by people with first-hand experience like themselves.

As any lawyer can tell you, there’s no substitute for thorough due diligence.

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