08 Aug ‘Devastated’: Mix-ups at fertility center breed litigation for emotional distress
Published by The Washington Times
By Alex Swoyer
Wednesday, August 7, 2019
Rebecca Cartellone was surprised to receive a DNA kit for Christmas last year but never expected the shocking finding that her dad was not her biological father.
Her parents, Joseph and Jennifer, were just as stunned.
They used in vitro fertilization to conceive Rebecca and concluded that someone had switched Mr. Cartellone’s sperm sample with another. They used Rebecca’s results to look at other potential relatives and narrowed the possible sources to five people, one of whom was a doctor at the hospital they used for their IVF procedure in 1994.
On Wednesday, they filed a lawsuit accusing Christ Hospital and Institute for Reproductive Health in Cincinnati of negligence and breach of contract, citing Rebecca’s emotional distress from the discovery.
“There is a mix of anger, pain and confusion that comes along with having to accept this and having to break the news to our family. This has been extremely difficult,” Mr. Cartellone said.
The Christ Hospital Health Network, through a spokesperson, said it is evaluating the accusations surrounding events dating back to the early 1990s but cannot comment publicly on pending litigation.
Adam Wolf, the family’s attorney, said the Cartellones’ story is not all that rare. He receives calls weekly about fertility center misconduct and said the scope of the problem cries out for more government oversight.
“The truth is some of them are simply business people making billions of dollars in profits. The bottom line is that self-regulation for fertility centers is just not working,” Mr. Wolf said Wednesday at a press conference announcing the Cartellone lawsuit.
His firm is handling another high-profile case: Anni and Ashot Manukyan went public with their ordeal last month.
They said they didn’t know they had a son until two weeks after his birth in March, when they learned that a fertility clinic wrongly implanted their embryo into the womb of a stranger who lived across the country and had just given birth to twins who clearly weren’t the products of her and her husband.
According to court papers, the twins were not only unrelated to the birth mother, but they weren’t even related to each other.
Mrs. Manukyan realized that her own attempts at IVF, which had failed the previous year, involved an embryo from another couple altogether.
The Manukyans had to battle the birth mother but eventually won custody of their son. The other twin also was taken away from the birth mother.
Now the Manukyans are suing the clinic they blame for the bungle. They are asking for payments to compensate them for anxiety and mental health counseling and say they have lost trust in those around them, thanks to the ordeal.
They said the clinic owes them for injecting Mrs. Manukyan “against her will” with the sperm and egg of strangers and for denying her and her husband important time with their son: the pregnancy itself.
“Defendants’ misconduct robbed Anni of the ability to carry her child throughout his fetal development,” the couple charged in their lawsuit, filed in superior court in Los Angeles. “Anni and Ashot are devastated that they never were able to experience the wonder of their son’s childbirth; they never saw their baby’s entrance into the world or cuddled him in his first seconds of life — moments that other parents treasure for the rest of their lives.”
The cases are testing the limits of fertility and contract law.
Lawrence Levine, a professor at the University of the Pacific, said the Manukyans have an uphill battle to win their lawsuit because they eventually gained custody and it will be tricky to prove how they are still injured as a matter of law.
“At the end of the day, there is going to be a real question about did they really suffer a cognizable injury,” Mr. Levine told The Washington Times. “The courts don’t want to deal with emotional distress even in 2019. It’s treated as a less serious injury than personal injury and property damage.”
He said the couple cite a 1996 California law that makes it a felony to implant genetic material while knowing there is no consent.
“I can’t imagine they are going to be able to prove any of this conduct was intentional,” Mr. Levine said.
Dov Fox, a professor at the University of San Diego School of Law, said the case could turn on the contract the couple had with the clinic, CHA Fertility Center, and whether it could be read to forbid implanting their embryos into a stranger.
The clinic didn’t respond to a message seeking comment.
The bungle was revealed after the birth mother in New York, who thought she had been implanted with two female embryos, gave birth to twin boys, according to court documents. The twins weren’t even the same race as the parents.
The Manukyans got an inkling something was wrong when their California clinic called them to come in for a DNA swab. They were told it was routine, but the clinic later revealed a match to a baby born to a woman in New York.
Mr. Wolf said part of the problem is that fertility clinics are subject to fewer regulations than barber shops or nail salons.
“The lack of rules and regulations is perhaps something that led to this tragedy,” he told The Times. “CHA has told us it’s unaware of its needing to even report this type of tragedy to anybody.”
Mr. Fox, who authored “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” said a New York couple sued a fertility clinic in 2007 after they found out their daughter wasn’t a match to the husband based on the skin color and hair.
That lawsuit was dismissed, Mr. Fox said, because the couple couldn’t show physical or economic loss — just emotional distress.
“The only harm the court was willing to entertain damages for was the anxiety associated with not knowing what had become of [the husband’s] sperm,” he said.
Mr. Levine said he wouldn’t be surprised if CHA Fertility Center settles the suit with the Manukyans.
“They screwed up so badly, so you would think the first thing they would want to do is try to settle this and not even get to the point you’re reporting about it,” he said.
Mr. Levine said he expects more of these kinds of lawsuits as reproductive technology advances.
“Error is part of a human quality,” he said.
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