{"id":33667,"date":"2025-03-21T15:36:49","date_gmt":"2025-03-21T15:36:49","guid":{"rendered":"https:\/\/cincinnatirighttolife.org\/?p=33667"},"modified":"2025-03-26T19:34:15","modified_gmt":"2025-03-26T19:34:15","slug":"after-ivf-nightmares-patients-have-few-protections","status":"publish","type":"post","link":"https:\/\/cincinnatirighttolife.org\/after-ivf-nightmares-patients-have-few-protections\/","title":{"rendered":"After IVF nightmares, patients have few protections"},"content":{"rendered":"\n

An NBC News analysis found hundreds of lawsuits over five years alleging that embryos were lost, destroyed or swapped by fertility clinics or companies.<\/strong><\/p>\n\n\n\n

By: Aria Bendix, Kenzi Abou-Sabe, Alexandra Chaidez, Priya Sridhar and Ellison Barber, originally published March 19, 2025, NBC News.com<\/a><\/em><\/strong><\/p>\n\n\n\n

Krystena Murray realized something had gone awry in her in-vitro fertilization process immediately after giving birth: She is white, as was her chosen sperm donor, who had dirty blond hair and blue eyes. But her baby was dark-skinned.<\/p>\n\n\n\n

\u201cHe was beautiful and perfect, but it was also very clear that something was wrong,\u201d she said. \u201cI hoped that it was just a sperm mix up.\u201d<\/p>\n\n\n\n

The IVF process had been grueling. Murray, now 38, had endured multiple daily injections, frequent blood draws, bouts of nausea and exhaustion, a first embryo transfer that didn\u2019t take, and, finally, pregnancy and labor.<\/p>\n\n\n\n

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Then a DNA test revealed that the Georgia fertility clinic Murray had used had implanted a different couple\u2019s embryo in her uterus. After raising the baby for five months, Murray, heartbroken, handed him over to his biological parents.<\/p>\n\n\n\n

\u201cWe all met in court, and the decision was made,\u201d she said. \u201cI walked in a mom with a child and a baby who loved me and was mine and was attached to me, and I walked out of the building with an empty stroller. And they left with my son.\u201d<\/p>\n\n\n\n

She sued the clinic last month.<\/p>\n\n\n

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\"Krystena
Krystena Murray during an IVF procedure.<\/em><\/strong>
Peiffer Wolf Carr Kane Conway & Wise<\/em><\/strong><\/figcaption><\/figure><\/div>\n\n\n

Although cases like Murray\u2019s are thought to be rare, an NBC News analysis of federal and state legal databases found more than 300 lawsuits filed from 2019 to 2024 alleging that embryos, eggs or sperm had been lost, destroyed or swapped. The suits were filed against fertility clinics or companies involved in the IVF process across 19 states, and the majority \u2014 at least 260 \u2014 involved allegations of product or equipment failures.<\/p>\n\n\n\n

Some legal experts say the cases are, in part, a product of the industry\u2019s rapid growth. The number of babies born via assisted reproductive technology \u2014 which includes IVF \u2014 more than quadrupled from 1996<\/a> to 2022<\/a>. The number of fertility procedures increased more than six-fold. Market researchers estimated the U.S. fertility industry was worth $5.7 billion last year<\/a>.<\/p>\n\n\n\n

IVF isn\u2019t governed by the same regulations that hold other medical practitioners accountable for mistakes or safety violations, three legal experts said. For example, although more than half of the states require hospitals to report serious, avoidable medical errors to regulators, those requirements don\u2019t apply to IVF clinics. And embryology labs aren\u2019t subject to federal inspections the way, say, blood banks are \u2014 instead, most are inspected by accreditation organizations. <\/p>\n\n\n\n

What\u2019s more, there is no established legal claim pertaining to lost or swapped embryos like there is for medical malpractice cases involving errors by health care providers. So, IVF patients often have a hard time seeking redress after something goes wrong.<\/p>\n\n\n\n

Few of the lawsuits in NBC News\u2019 analysis have gone to trial \u2014 and of those that have been resolved, most were settled or dismissed.<\/p>\n\n\n\n

Adam Wolf, an attorney representing Murray, said he expects to see more cases like hers because, in his view, the U.S. lacks sufficient state and federal regulations governing fertility clinics and labs.<\/p>\n\n\n\n

\u201cUntil IVF clinics are subject to real regulations, reporting requirements and mandatory certification programs for lab staff, these types of errors will continue to occur,\u201d he said at a news conference last month. <\/p>\n\n\n\n

Wolf is part of a growing chorus of former IVF patients, lawyers, bioethicists and even some anti-abortion advocates calling for increased regulation of IVF. As demand rises, some say, the industry needs more oversight in order to keep pace. <\/p>\n\n\n\n

\u201cMaybe if enough of us speak out, there will be more regulation, there will be more protocol put into place,\u201d said Marissa Calhoun, 36, who sued her Los Angeles fertility clinic in the fall, alleging that the embryos she and her partner intended to use to start a family had been discarded by mistake. \u201cThat\u2019s my only hope.\u201d <\/p>\n\n\n\n

How common are IVF errors? It\u2019s a mystery<\/h2>\n\n\n\n

Calhoun was diagnosed in her teens with severe endometriosis \u2014 a condition that can make it difficult to get pregnant. By age 35, she had completed three painful egg retrievals. <\/p>\n\n\n

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\"Marissa
Marissa Calhoun and Stephen Castaneda.Courtesy Marissa Calhoun and Stephen Castaneda<\/figcaption><\/figure><\/div>\n\n\n

She and her partner, Stephen Castaneda, were elated in late 2023 when they found out that 16 of Calhoun\u2019s eggs had been successfully fertilized.<\/p>\n\n\n\n

But days later, Calhoun\u2019s doctor called: \u201cHe told me that all of my embryos had been discarded. He described it as an error in their lab,\u201d she said. \u201cI could barely speak. The weight of my medical condition, the weight of the years I spent collecting those eggs \u2026 I can\u2019t describe the rush of thoughts and the rush of emotions that overtook me. I was just inconsolable.\u201d<\/p>\n\n\n\n

Calhoun\u2019s lawsuit alleges that a laboratory employee had failed to label her embryos before placing them in an incubator, then threw the unlabeled embryos away.<\/p>\n\n\n\n

The clinic, Reproductive Partners Medical Group, said it could not comment on an active lawsuit but denied the allegations in a court filing. A conference between the judge and the opposing parties is scheduled for later this month to determine next steps. <\/p>\n\n\n\n

NBC News\u2019 analysis identified 82 lawsuits related to allegations of human error, like Calhoun\u2019s, from 2019 to 2024, and 13 over swapped embryos, eggs or sperm.<\/p>\n\n\n\n

Embryo lawsuit allegations, 2019 – 2024<\/h3>\n\n\n\n

Cases where embryos or the eggs and sperm used to create them were allegedly lost, destroyed or swapped by fertility clinics or companies.<\/p>\n\n\n

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The cases involving equipment and product failures, meanwhile, included 176 related to a 2018 storage tank failure at a fertility clinic in San Francisco called Pacific Fertility Center, which led to the destruction of about 2,500 eggs and 1,500 embryos. <\/p>\n\n\n\n

The tank\u2019s maker, Chart Industries Inc., denied an allegation made in a class action suit that the tank was defective. The clinic\u2019s parent company, Prelude Fertility, denied allegations that it had been negligent. <\/p>\n\n\n\n

\u201cPrelude and Pacific Fertility Center contend that the 2018 storage tank failure was caused by a defective tank,\u201d said Alexandra Preece Barlow, an attorney who represented Prelude in the class action suit.<\/p>\n\n\n\n

Many of the cases against the clinic have gone to arbitration. However, in one that went to trial, a jury determined that Chart and Pacific Fertility Center had been negligent and awarded five former patients a total of $15 million<\/a>. Chart appealed and reached a confidential settlement in that case and others.  <\/p>\n\n\n\n

Chart, Prelude Fertility and Pacific Fertility Center did not respond to requests for comment. However, the clinic told NBC Bay Area<\/a> shortly after the incident that it had brought in independent experts to investigate.<\/p>\n\n\n\n

\u201cWe are truly sorry this happened and for the anxiety that this will surely cause,\u201d it said at the time.<\/p>\n\n\n\n

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Fifty-plus other lawsuits in NBC News\u2019 analysis were related to claims that a liquid used to help fertilized eggs develop destroyed hundreds of embryos. The company that manufactured the solution, CooperSurgical, recalled several lots<\/a> last year. <\/p>\n\n\n\n

CooperSurgical did not respond to requests for comment; in a statement to NBC Connecticut<\/a> last year, it said it had initiated the recall proactively while investigating any potential issues. The company denied liability in response to one ongoing lawsuit in Ohio, and it has not yet responded to others filed in Connecticut, according to lawyers representing some of those plaintiffs.<\/p>\n\n\n\n

It\u2019s impossible to know how often IVF-related accidents or mistakes really happen because clinics aren\u2019t required to report them to federal or state agencies. No national database tracks the issues.<\/p>\n\n\n\n

Many IVF patients sign agreements to resolve disputes through a neutral third party rather than in court, said Tiseme Zegeye, who represents dozens of patients suing CooperSurgical.<\/p>\n\n\n\n

\u201cWe only hear about a small percentage of the disasters that happen in the fertility industry because so many patients sign arbitration agreements with their clinic,\u201d she said. <\/p>\n\n\n\n

On the regulatory side, states generally don\u2019t require a special license for IVF clinics to operate. (By contrast, the United Kingdom has a regulatory authority that licenses<\/a> fertility clinics and approves the procedures they offer.)<\/p>\n\n\n\n

The Food and Drug Administration does, however, inspect facilities that store eggs and embryos and requires donor eggs and sperm to be tested for disease. IVF clinics are also required to report pregnancy success rates annually to the Centers for Disease Control and Prevention, which publishes the data.<\/p>\n\n\n\n

Many fertility clinics and labs follow voluntary guidelines from the American Society for Reproductive Medicine, a professional association of fertility doctors that outlines best practices. The guidelines include having a policy to disclose errors to patients. <\/p>\n\n\n\n

Contrary to the characterization offered by some legal experts, Sean Tipton, the society\u2019s chief advocacy and policy officer, said that \u201cfertility care is regulated essentially the same way as all medicine in the U.S.\u201d and that lawsuits are \u201can important component\u201d of that.<\/p>\n\n\n\n

The society declined to answer specific questions about fertility industry lawsuits. <\/p>\n\n\n\n

IVF errors fall into a legal gray area<\/h2>\n\n\n\n

Murray surrendered custody of the baby she still considers her son in May, knowing she would likely lose a custody battle. Giving him up was perhaps the hardest thing she\u2019s ever done, she said.<\/p>\n\n\n\n

\u201cYou\u2019ve built your whole life around your son. You rearrange everything. Everything is about him. You spend every day for him, and then he\u2019s not there,\u201d Murray said. <\/p>\n\n\n

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The clinic, Coastal Fertility Specialists, told NBC News that it \u201cdeeply regrets the distress caused by an unprecedented error that resulted in an embryo transfer mix-up.\u201d It has not yet responded to the complaint.<\/p>\n\n\n\n

Dov Fox, director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law, said IVF lawsuits are challenging because courts tend to treat the errors as unfortunate accidents rather than violations of a provider\u2019s duty to care for patients.<\/p>\n\n\n\n

\u201cCourts have been reluctant to recognize reproductive interests as real or serious, and, in turn, we haven\u2019t developed the kind of practice standards or expectations enforceable under the law in the way that we have in other areas of health care,\u201d he said.<\/p>\n\n\n\n

By comparison, for medical errors like a sponge left inside a patient after a surgical procedure, patients often sue for medical malpractice. Fox said suits involving embryo loss have a harder time making that claim, since they rarely result in physical injuries. Instead, he added, they are typically filed as negligence or property damage cases, which often focus on financial harm and may underplay the emotional costs to couples. <\/p>\n\n\n\n

Courts also don\u2019t look favorably upon claims that a clinic violated its contract with a patient, he said, since clinics don\u2019t guarantee results. <\/p>\n\n\n\n

The IVF industry has historically opposed additional regulation, saying that mistakes are no more common than in any other field of medicine. <\/p>\n\n\n\n

\u201cI think the industry as a whole is moving in the direction of safer practices \u2014 not that it was unsafe before, but just improving and getting better,\u201d said Brent Barrett, chief laboratory director at Boston IVF, a network of more than 15 fertility centers across New England.<\/p>\n\n\n\n

Barrett said IVF clinics generally have strict protocols about where equipment is placed in labs and require more than one person to examine labels and dishes containing embryos. Many clinics have also adopted electronic tracking systems that assign barcodes to eggs, embryos and sperm.<\/p>\n\n\n\n

But those measures aren\u2019t federally mandated.<\/p>\n\n\n\n

\u201cClinics could, if they want, use pencil and paper to label reproductive specimens,\u201d Fox said.<\/p>\n\n\n\n

A fraught debate over embryos<\/h2>\n\n\n\n

Reproductive rights advocates also have a reason to be wary of increased IVF regulations: They fear amplifying debates about whether embryos are considered babies under the law. <\/p>\n\n\n\n

That question was central to a wrongful death lawsuit filed last year against a fertility clinic in Alabama, after a person allegedly dropped several embryos on the floor. The Alabama Supreme Court ruled that embryos created through IVF<\/a> were legally children. <\/p>\n\n\n\n

The verdict prompted multiple clinics to pause IVF services<\/a> until state lawmakers passed a bill protecting providers that discard embryos. Discarding embryos because they have genetic abnormalities or patients no longer wish to use them is a routine part of the IVF process, though anti-abortion groups oppose the practice.<\/p>\n\n\n\n

\u201cIVF is really mired in personhood and abortion debates in the United States in a way that just really complicates the discourse compared to places like the U.K.,\u201d said Danielle Pacia, a research associate at The Hastings Center, a bioethics research institute in Garrison, New York. <\/p>\n\n\n\n

Zegeye, the lawyer, acknowledged that in pushing for IVF regulations, there\u2019s a risk of extremes that prevent clinics from functioning \u2014 as happened in Alabama.<\/p>\n\n\n\n

\u201cI do think that there\u2019s a fine line and that we have to find a way to allow access to health care and still protect patients,\u201d she said.<\/p>\n\n\n\n

The Alabama case, and its timing during an election year, thrust such conversations into the national spotlight. <\/p>\n\n\n\n

Republicans and Democrats each introduced IVF bills in the Senate last year: The Democratic bill proposed codifying access to IVF at the federal level, while the Republican bill would have denied Medicaid funds to states that prohibited IVF. Neither passed.<\/p>\n\n\n\n

Kamala Harris and Donald Trump both expressed support for IVF access during their campaigns, with Trump promising that either the government or insurance companies would cover the cost<\/a>. Last month, President Trump issued an executive order<\/a> seeking strategies to lower IVF costs, including by further reducing regulation.<\/p>\n\n\n\n

\u201cIt is the policy of my Administration to ensure reliable access to IVF treatment, including by easing unnecessary statutory or regulatory burdens to make IVF treatment drastically more affordable,\u201d the order says.<\/p>\n\n\n\n

In the wake of the announcement, several anti-abortion groups called for more oversight of the industry. <\/p>\n\n\n\n

\u201cAmerica\u2019s IVF industry is completely unregulated,\u201d Kristan Hawkins, president of Students for Life of America, an anti-abortion advocacy group, wrote on X<\/a>. \u201cNow that President Trump says he wants to fund more of it, shouldn\u2019t a logical step for the Trump Administration be to regulate it, at a minimum?\u201d<\/p>\n\n\n\n

Aria Bendix is the breaking health reporter for NBC News Digital.<\/em><\/strong><\/p>\n\n\n\n

Kenzi Abou-Sabe is a reporter and producer in the NBC News Investigative Unit.<\/em><\/strong><\/p>\n\n\n\n

Alexandra Chaidez is an associate producer with the NBC News Investigative Unit.<\/em><\/strong><\/p>\n\n\n\n

Priya Sridhar is an NBC News correspondent.\u00a0<\/em><\/strong><\/p>\n\n\n\n

Ellison Barber is an American journalist and correspondent for NBC News.<\/em><\/strong><\/p>\n\n\n\n

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