Embryos, Eggs & Errors: Examining Fertility Clinic Negligence, Part 2
This is the second of two parts dealing with fertility clinic negligence. If you haven’t had a chance, go back and read Part 1 where I discuss what is assisted human reproduction (“AHR”), a brief history of fertility care, and the gaps in regulation of this industry.
In this second instalment of my two-part series on fertility clinic negligence, I explore how some of the regulatory failures outlined in Part 1 have created conditions where terrible errors have caused unimaginable harm for the patients who trusted these facilities to manage the creation of their family.
As I mentioned in Part 1, there is a special vulnerability that comes with being a patient at a fertility clinic. Something that comes easily for many can be very difficult for others. The process is often both physically and emotionally challenging. In many cases the patients have turned to fertility care after facing significant challenges with conception. Many patients have suffered multiple pregnancy losses or setbacks prior to seeking fertility care. This reality coupled with the intensely personal and profoundly hopeful decision to seek help via AHR makes errors, when they happen, devastating.
What Kinds of Problems Occur in Fertility Clinics?
The absence of effective regulations and timely inspections has not gone unnoticed by people working in, monitoring and using AHR services. As discussed in Part 1, federal and provincial regulators have taken multiple attempts at regulating this industry, and while some elements are well regulated, for example: sperm and ovum donation, surrogacy, and use of embryos; other elements, are not, including licensing and training of embryologists and mandatory participation in errors reporting and clinic licensing. In Canada healthcare falls under the provincial domain, making consistent legislation/regulation across the country difficult to establish.
Recently, a submission was made to the house of commons by Maureen McTeer and Dr. Art Leader (former fertility doctor and professor at the University of Ottawa) calling for a full and comprehensive parliamentary review of the federal Assisted Human Reproduction Act. Ms. McTeer, a lawyer who specializes in health law and public policy also recently wrote a book on this very topic Fertility: 40 Years of Change, which was published last year.
Unfortunately, the current gaps in regulation and licensing have led to devastating failures in the system. Including misplacement and misuse of biologic materials. In many cases, the situation is handled privately without media attention but examples of these types of situations have been seen and written about in the United States.
A woman in New York gave birth to twins which were, unexpectedly, not genetically related to her, her partner or each other. She and partner were forced to relinquish these children to their biological parents.
Two couples in California discovered they had given birth to each other’s babies one week apart. When the IVF mix-up was discovered, the couples met and decided to swap the four-month-old babies.
In a particularly egregious example, a California woman was allegedly improperly impregnated with a set of embryos that were not genetically hers. When the fertility doctor realized the clinic’s error, he allegedly performed an abortion on her without her knowledge or consent.
These types of situations have and are occurring in Canada. Over many years an Ottawa- area doctor allegedly used the wrong sperm and even his own sperm in the conception of many children. A class action suit against the doctor resulted in a settlement for more than 200 members of the class.
Unbelievably, there is no mandatory reporting to a specialized fertility oversight organization to understand how these errors have occurred and to ensure lessons are learned. In my opinion, a fertility oversight organization is essential. A piecemeal and patchwork approach to this area of medicine is not workable. Patient safety must be prioritized to ensure errors are not repeated.
While the examples above may seem to be extreme and perhaps sensationalized in the media, similar situations involving the implantation of the wrong embryo into a patient to whom it does not belong or mislabelling of genetic material resulting in errors in the creation of embryos have happened in Canada. These heartbreaking stories and their repercussions are incredibly emotional for the people involved.
Other examples of fertility clinic negligence include losses of ovum, sperm or embryos in storage. In many cases there are errors in process and labelling. There have also been large scale freezer failures, where no backup or generator was in place to ensure prevention of a catastrophic loss. In 2018, Gluckstein Personal Injury Lawyers filed a class action lawsuit against ReproMed, also known as the Toronto Institute for Reproductive Medicine, on behalf of a woman who lost 65 eggs that were being stored in a malfunctioning freezer. The lawsuit, which sought damages for negligence, breach of contract, and breach of statutory duties, named all individuals who lost viable embryos, sperm and ovum. Our firm was involved in negotiating a settlement for the individuals who lost their stored genetic material.
The pain that follows a loss of stored sperm, ovum or embryos for individuals who have undergone cancer treatment resulting in infertility, is extraordinary. For most patients who have experienced the loss of genetic material stored with the intention of preserving fertility for the future, the pain and grief cannot be understated. The unexpected loss or destruction of stored biologic material can mean the loss of the ability to have a child.
The patients who determine their child is not genetically related to one or both parents, as expected, is beyond devastating and brings up questions of parentage rights, unknown health history and how to handle eventual discussions with children who will learn that their birth story involves an unimaginable mistake. These mistakes also lead to situations where a person’s genetic material may have been unknowingly used to create an embryo and eventual child they may never know. It is difficult to imagine the potential devastation for these families, whose hopes and dreams have become a nightmare.
What Can Be Done?
Patients need to meet with and trust their physician prior to starting treatment. If you feel rushed or like a number at the clinic, that may be a red flag. If there are significant addon procedures or steps that have not fully been explained, particularly how they will increase the success of the treatment, patients need to ask more questions. Asking questions is also very important at critical stages of your treatment, including the implantation of embryos – is your name and date of birth on all documentation associated with the embryo? You are entitled to see and review your medical records upon request. Lastly, if you have any questions after the birth of your baby, a genetic test may provide answers and hopefully relieve concern.
Patients can be comforted by the fact that most fertility doctors understand the trust that has been placed with them to assist in creating a family. Most clinics do have policies and procedures that they have voluntarily created. In my view mandatory oversight is still required. Mandatory guidelines and protocols related to methods of creating, storing, and labelling genetic material is essential, as is formal licensing of embryologists practicing in Canada.
In the event you suspect or know a fertility clinic’s negligence has caused you harm, you and your family should seek legal advice from an experienced medical malpractice lawyer.
How Can a Medical Malpractice Lawyer Help With My Fertility Case?
As a lawyer practicing in this area, I understand how emotionally draining it can be when patients suffer from harm caused by negligence. I will take the time to explain your rights and options so that you can make an informed decision moving forward.
When it comes to fertility clinic malpractice, it may not be possible to restore your life to what it was before that harm was caused but seeking accountability and fair compensation can give you a sense of closure that will allow you to move forward with your life. In some cases, compensation means having the funds to undergo future AHR to replace that which was lost.
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