Family Law

Worst IVF Nightmare Ever: Couple Forced To Give Up Twins Conceived From Crazy Double Embryo Mix-Up

Three families had mixed-up embryos in one transfer here. It's almost impressively incompetent.

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Infertility is an incredibly difficult road. And IVF is no picnic. It involves spending thousands of dollars, countless shots and medications, a deeply emotional rollercoaster, and at the end, the hopeful parent or parents-to-be are holding their breath that the odds will be in their favor and their dream of a child will be fulfilled.

A New York couple — known as A.P. and Y.Z in their recently filed federal suit in the Eastern District of New York — have one of the most painful and heart-wrenching stories I’ve heard yet. The couple, like many, were unable to conceive naturally, and suffered failed IUI fertility treatments. So they looked for other solutions. The plaintiffs found the website and other promotional materials of CHA Fertility Center Los Angeles, and they were persuaded to sign up for treatment. CHA claims to be “known as the ‘mecca of reproductive medicine’ with world-class treatments for infertility” and states that they “ensure each [patient] receives the most appropriate and advanced treatment necessary.” Sounds like CHA takes a lot of pride in their work, right?  Hold on.

According to the complaint, the plaintiffs traveled to California to undergo fertility treatment with CHA Fertility. Embryos were formed from the plaintiffs’ eggs and sperm. After genetic testing was completed, Plaintiffs received the good news that they had five normal embryos — four female, and one male. I promise there won’t be much math in the rest of the column, but the genders of the embryos does matter.  The couple went through one failed transfer. On the second transfer, they opted to transfer two female embryos to Plaintiff A.P. The plaintiffs were ecstatic to learn soon after that the transfer worked and they were carrying twins. But that’s actually where the nightmare began.

As the pregnancy progressed, A.P. went in for regular obstetrical care, including the ultrasound where doctors can tell you the sex of the baby. The obstetrician reported that based on the ultrasound, both babies were … boys. Naturally, plaintiffs were confused. They only had one male embryo, and it had not, to their understanding, been transferred. Plaintiffs called CHA Fertility. The clinic reassured them that ultrasound tests were not always accurate. And in fact, the doctor explained that his own wife had been told based on a sonogram that they were having a boy, but in fact had a girl. The doctor assured plaintiffs that “they were having girls and nothing was wrong.” Oh. OK. Sorry to bother you, doctor.

But despite the doctor’s own personal experience, he was quite wrong about the ultrasound, which had been read accurately. So when A.P. gave birth at the end of March 2019, plaintiffs were shocked that their babies were in fact both boys. It gets worse though. Neither of the babies appeared to be the same race as the plaintiffs. Representatives of CHA Fertility flew out to New York to conduct genetic testing of the babies. Sure enough, neither of the babies were genetically related to the plaintiffs. Instead, they were related to other patients of CHA. To make matters even worse, the twins weren’t even genetically related to each other! The “testing revealed that Baby A was genetically matched to Couple A, and Baby B was genetically matched to Couple B.” Wow. How does that even happen? That’s not just two families’ embryos being switched, that’s three families have mixed-up embryos in one transfer. It’s almost impressively incompetent.

The complaint explains that as a result of the DNA tests, “Plaintiffs were required to relinquish custody of Baby A and Baby B, thus suffering the loss of two children.” That must have been traumatic. I am traumatized just thinking about those moments in the hospital. To make matters worse, the clinic won’t say where the plaintiffs’ own embryos are!

A.P. essentially unknowingly and unwillingly acted as a gestational surrogate for two other families. So what is the legal theory for the plaintiffs to recover? All of them, you may say. Actually, plaintiffs list 16 counts, including: medical malpractice, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, reckless and wanton misconduct, battery, and multiple breaches of duty. Honestly, it’s amazing that CHA didn’t offer plaintiffs millions of dollars in recompense before they filed their complaint, just to avoid what may be company-ending bad publicity.

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In any event, if the allegations are true, and the world is a just place, plaintiffs no doubt should be entitled to a substantial recovery. Unfortunately, the law continues to be ill-fitted to address reproductive negligence claims and their unique aspects. In the meantime, we await the verdict as well as the premiere of the horror movie based on these events.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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