Dozens of fetuses are believed to have been affected, and more patients are planning to sue, lawyers for two of the couples who sued in Orange County, California, told The Washington Post. Ta. Attorney Adam Wolfe accused Ovation of implanting compromised embryos into patients over several weeks.
“This is a completely unnecessary tragedy,” Wolf said. He said he is representing two more patients who plan to sue.
The company said in a statement that a “very small number” of patients were affected.
Some of the lawsuits allege that clinic staff used “extremely dangerous” amounts of hydrogen peroxide to clean incubators containing embryos before transferring them to patients' uteruses. Staff then placed the embryo in an incubator, effectively destroying it and rendering it non-viable. Still, they were transferred into the patient's body.
Wolf said that information is based on what Ovation's office communicated to some patients. Rob Marselow, a lawyer for the other plaintiffs, told Los Angeles City News Service that the clinic “has been telling different stories” to different patients.
Ovation Fertility said in a statement that the clinic was not aware that the embryos were not viable and only became aware that something might have gone wrong after the transfer failed to result in a pregnancy.
“We began an investigation as soon as we became aware that the number of pregnancies was lower than the normally high success rate,” it said in a statement. “We did not knowingly transfer non-viable embryos for implantation.”
Ovation blamed what it called an isolated incident on “an unintentional error by the laboratory technician” and said the clinic has strict procedures in place to protect embryos.
In vitro fertilization involves removing eggs from a patient's uterus, fertilizing them to create embryos, and implanting them. the embryo into the uterus. It can be a long and difficult process and is often disappointing for couples experiencing infertility.
Every embryo is precious because some couples are unable to obtain many embryos through treatment and not all embryos lead to pregnancy.
Wolf said he knows of several patients whose last embryos were used for transfer.
“Plaintiffs are being deprived of the opportunity to use their embryos,” the lawsuit states.
In vitro fertilization has been in the spotlight since the Alabama Supreme Court ruled in February that frozen embryos are human. The ruling caused a political firestorm, created anxiety for couples in treatment, and led the Alabama Legislature to provide legal protections to providers. The case arose from a lawsuit filed by a couple whose fetus was destroyed after a hospitalized patient accessed and dropped the container containing the fetus.
How strictly to regulate in vitro fertilization has long been a topic of debate in the United States. Although reproductive technology has been the subject of criticism from some conservatives, Clinicians say it is well regulated. The American Society of Reproductive Medicine, which represents health care providers, says state, federal and professional regulations ensure safety.
“Incidents like this are extremely rare,” says Gerald Lettery, a reproductive endocrinologist and partner at Reproductive Medicine in Seattle, Washington.
Naomi R. Kahn, co-director of the University of Virginia Family Law Center and reproductive technology researcher, said IVF clinics are accredited by independent regulatory agencies, but stricter federal or state regulations could change standards. He said it could be applied more strictly.
“Currently, litigation serves as a means to regulate the industry,” Khan said. “We need to work to prevent these accidents.”
She added that the Newport Beach incident shows “the need for better oversight and regulation of IVF clinics.” She said it's difficult to estimate how many errors occur in the lab because typically only the worst cases are made public.
The lawsuit accuses Ovation of negligent misrepresentation, fraud and medical practice and seeks monetary and punitive damages.
“It's hard to explain how deeply traumatic this is for parents-to-be,” Wolf said. “The infertility journey is difficult enough even when everything goes perfectly, but when fertility clinics are so reckless and indifferent, it's completely inexcusable.”
