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IVF clinic transferred ruined embryos to patients, lawsuits claim

A California fertility clinic transferred destroyed embryos to several patients, without realizing that the embryos had been compromised and could not result in a pregnancy, according to a series of lawsuits this month.

At least 11 people treated at an Ovation Fertility office in Newport Beach, Calif., underwent embryo transfers and waited to find out if they would get pregnant — but the embryos were no longer viable, the patients claimed in separate lawsuits, including nine. were filed on Tuesday.

Dozens of embryos may have been affected and more patients are considering legal action, the attorney for two of the couples who filed the lawsuits in Orange County, California, told the Washington Post. Adam Wolf, the lawyer, accused Ovation of transferring compromised embryos to patients over several weeks.

“It’s a total tragedy that was completely unnecessary,” Wolf said. He said he represented two other patients who were considering suing.

The company said in a statement that “a very small number” of patients were affected.

Some lawsuits allege that clinic staff cleaned an incubator — where embryos are placed before they are transferred to a patient’s uterus — with an “extremely dangerous” amount of hydrogen peroxide. Staff then placed the embryos in the incubator, which destroyed them, making them non-viable. Yet they were transferred to patients.

This information is based on what Ovation’s office has told some patients, Wolf said. Rob Marcereau, an attorney for other plaintiffs, told City News Service of Los Angeles that the clinic “told different stories” to different patients.

The clinic did not know the embryos were not viable, Ovation Fertility said in the statement, realizing something could have gone wrong only after the transfers failed to result in pregnancies.

“As soon as we noticed that the number of pregnancies was below our usually high success rates, we immediately opened an investigation,” the statement said. “We did not knowingly transfer non-viable embryos for implantation.”

Ovation blamed “unintentional error by a lab technician” for what it called an isolated incident and said the clinic had rigorous protocols in place to protect the embryos.

IVF involves retrieving eggs from a patient’s uterus, fertilizing them to create embryos, and transferring them embryos to the uterus. This can be a long and difficult process, and disappointments are common for couples suffering from infertility.

Some couples don’t get many embryos from treatment, and not all embryos result in pregnancies, so each has value.

Wolf said he knows of some patients who used their last embryos in the transfer.

“Plaintiffs were deprived of the opportunity to use their embryos,” the lawsuit states.

IVF has been in the spotlight since the Alabama Supreme Court ruled in February that frozen embryos are people — a decision that ignited a political storm, alarmed couples in treatment and led lawmakers to Alabama to grant legal coverage to providers. This case stems from a lawsuit brought by couples whose embryos were destroyed by a hospital patient who allegedly accessed and dropped a container containing them.

How to strictly regulate IVF has long been a topic of debate in the United States. Reproductive technologies have been the target of criticism from some conservatives, while clinicians say it is sufficiently regulated. The American Society of Reproductive Medicine, which represents providers, says state, federal and professional regulations ensure safety.

“Incidents like this are extremely rare,” said Gerard Letterie, a reproductive endocrinologist and associate at Seattle Reproductive Medicine in Washington state.

Although IVF clinics are certified by independent regulators, federal or state regulation could enforce stricter standards, said Naomi R. Cahn, who co-directs the Family Law Center at the University of Virginia and studies the technologies reproduction.

“Currently, lawsuits are used to regulate the industry,” Cahn said. “We must work to prevent these accidents.”

She added that the Newport Beach case demonstrates “the need for better monitoring and regulation of IVF clinics.” She said it is difficult to estimate the number of errors that occur in laboratories, because only the most egregious cases are usually made public.

The lawsuits accuse Ovation of negligent misrepresentation, fraud and medical battery and seek monetary and punitive damages.

“It’s hard to describe how deeply traumatic this is for expectant parents,” Wolf said. “A fertility journey is hard enough when everything is going perfectly, and it’s simply inexcusable when a fertility clinic is so reckless and uncaring.”

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