Clinic Accused of Destroying Embryos

     LOS ANGELES (CN) – A Beverly Hills fertility clinic destroyed a woman’s fertilized embryos and waited a year to tell her, the woman claims in court.
     Marisa Yukich sued ART Reproductive Center and its co-founder Dr. David L. Hill in Superior Court Wednesday.
     “This is the first case that we are aware of that will go to trial based on a fertility clinic’s destruction of someone’s embryos,” plaintiff’s attorney Adam Wolf told Courthouse News.
     “ART took from Marisa her most precious property: her fertilized eggs. Marisa naturally viewed them as her future children. ART took away her opportunity for motherhood,” he said.
     Yukich is unsure whether she is emotionally able to undergo the egg extraction procedure again, and whether it would work if she did, Wolf said.
     According to several published studies and the information on ART’s own website, the older a woman gets, the lower her chances are of successfully conceiving. By destroying Yukich’s eggs, ART took away her best chance for motherhood, Wolf said.
     “The center had an obligation not to destroy the embryos. Moreover, should a horrific incident occur, they were obligated to tell her as soon as possible. Not wait a year. ART violated both of those obvious obligations,” he said.
     In her 17- page complaint, Yukich says she was a patient at ART for two years. “During that time, she entrusted ART with her most sensitive and important personal property: her fertilized eggs. Marisa was going to use the pre-embryos to fulfill her dream of becoming a mother.”
     “ART promised to safeguard and protect Marisa’s fertilized eggs, vouching to maximize Marisa’s chances of becoming pregnant and raising children. Despite its agreement to maintain this position of extreme trust and fidelity, ART recklessly and/or negligently destroyed Marisa’s fertilized eggs, in direct violation of her express request and ART’s own contractual guarantees,” the complaint continues.
     Yukich says she was 36 years old when she decided to try in vitro fertilization to become a mom. According to her research, older women have a lower chance of conceiving and bringing a fetus to term. Eggs grow more fragile with age and the likelihood of miscarriage and genetic mutations increases, but extracting and freezing eggs when a woman is still young can preserve her fertility and enable her to become pregnant at a later date.
     Extracted eggs are preserved through a process called cryopreservation, in which fertilized eggs are treated with a special solution to protect them from freezing, then gradually cooled to sub-freezing temperatures and placed in liquid nitrogen for storage. Since roughly 35 percent of eggs do not survive thawing, women must have many eggs extracted to increase the probability of a viable pre-embryo, according to the complaint.
     Once thawed, several eggs are then implanted in the woman’s uterus to increase the likelihood of a pregnancy, the complaint states.
     Yukich says she “put a lot of thought” into choosing a doctor and ultimately selected ART because its website and promotional materials trumpeted its “purportedly high standards of care, treatment, and technology” and promised never to destroy someone’s eggs or sperm.
     Before having her eggs extracted, Yukich says she had to take ovulation stimulation drugs and hormonal injections daily by needle for about two weeks, undergo several blood tests and ultrasounds, and go to doctors appointments every other day – which cost thousands of dollars out of pocket, since her insurance did not cover infertility treatments.
     The day of her egg-extraction surgery, ART staff gave her a “thick stack of documents” that she had never reviewed before, including a contract for embryo storage and an “unconscionable and unenforceable release of liability and an unconscionable and unenforceable liquidated damages provision, which purports to limit Marisa’s damages in the event ART destroyed her materials contrary to her wishes – even in the event of intentional and malicious destruction – to the cost of storage for one year in which the destruction took place, plus $100,” the complaint states.
     After signing the documents, Yukich says she had the extraction surgery – a painful, invasive process in which a needle is attached to a vaginal ultrasound probe and inserted through the vaginal wall into the ovaries. Ultimately the doctors harvested seven viable pre-embryos – and charged her $5,365 for the surgery and embryo storage.
     Fourteen months after the surgery, Yukich decided to have the extra vial of sperm destroyed and sent ART a form request, underlining “sperm” to ensure that her eggs would continue to be stored, according to the complaint.
     But a year later, defendant Dr. Hill called her and said that ART had destroyed the seven fertilized eggs instead of the sperm, the complaint states.
     Yukich claims the destruction of her eggs is the direct result of ART’s recklessness and negligence, and that its preservation procedures “were obviously insufficient to guard against the risk of improper destruction of cryo-preserved materials in violation of a client’s express wishes.”
     She says she viewed the embryos “as her future children,” and has suffered “extreme emotional distress and grief” at not only their loss. She is also distressed about the idea of undergoing the expensive, painful process again and “the fact that she may now not be able to have as many children as she had hoped – indeed, may not be able to have any of her own biological children.”
     Though she has started seeing a therapist to cope with her grief, her “understandable and severe distress” is interfering with her personal relationships and her ability to work, according to the complaint.
     Since she is three years older than when she first had the procedure, her chances of producing strong, viable eggs that will survive fertilization and transfer are far lower. Even if she had the procedure again, she’d have to find an entirely new doctor and an entirely new facility since her previous and trusted doctor “is affiliated with the very facility that destroyed Marisa’s pre-embryos,” the complaint states.
     ART told Courthouse News in an email that the company is dedicated to excellence and has given top-quality care to thousands of patients for almost 15 years.
     “Unfortunately, due to a single human error, the first ever in the history of the center, one patient’s blastocysts were responsibly, yet inadvertently discarded. Immediately upon discovery of the error, the patient was contacted and was honestly and accurately advised of the events,” ART wrote.
     ART said it offered Yukich “unlimited services” to recreate the embryos using the same sperm donor and to have the procedure repeated at a facility of her choice, all at ART’s expense, but she refused.
     “Regrettably, the patient, rather than taking this opportunity to recreate her lost reproductive material, instead decided to file a lawsuit seeking an enormous amount of money. We are saddened that the patient has lost interest in re-creating her lost reproductive material and disappointed that she has chosen to pursue her goals through litigation,” ART wrote.
     Yukich seeks compensatory, property, and emotional damages for breach of contract, conversion, negligence, and negligent infliction of emotional distress.
     Attorney Adam Wolf is with Peiffer, Rosca, Wolf, Abdullah, Carr & Kane’s San Francisco office.
     
     
     

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