When Science Comes with Risks: Couple Sues Over IVF Embryo Mix Up

An IVF mix up in California recently made headlines, illustrating the devastating fallout that can occur when human error and science collide. Although these incidents are rare, when they do occur, families are torn apart. In vitro fertilization (IVF) helps couples with fertility issues conceive their own children, an expensive and physically arduous process. When successful, IVF is a triumph of science and medicine.

However, even science is not foolproof and when mistakes happen, they can be life-altering for every family involved.

What happened to the Cardinales?

The New York Times detailed the story of Daphna and Alexander Cardinale, who turned to IVF in 2019 to conceive their second child. The procedure was successful and Daphna gave birth that September to a baby girl, but the couple noted the infant did not resemble them, with darker skin and black hair. For three months, they lovingly raised her as their daughter – until Christmas Eve, when they learned the shocking news through a DNA test that she was not actually their biological child.

Explains the NYT, “When they confronted a Los Angeles-area fertility clinic about the results, the couple said, they eventually learned that an embryo from another couple had been implanted in Ms. Cardinale, and vice versa.”

By the new year, the Cardinales had met their biological daughter, the other family had met theirs, and took custody of her a few weeks later in what was described as a “traumatic custody exchange.” The Cardinales are suing the fertility clinic, saying, “We missed an entire year of our daughter’s life. We never saw our baby’s entrance into the world or cuddled her in her first seconds of life. Every time I felt a kick or spoke to her, it was someone else’s baby.”

How do IVF mix ups happen?

IVF mix ups are rare – but they happen. Although fertility clinics like the one the Cardinales used self-regulate through professional organizations, there is no federal oversight and no single government entity with the power to enforce safety procedures or penalize companies when they deviate from those policies.

Dov Fox, a San Diego law professor told TODAY, “In fertility medicine, it’s very different than any other field, where we regulate very closely what’s called ‘never events.’ These are major, avoidable mistakes … We have nothing like that for what you might call ‘never events’ in reproductive technology.”

Although we don’t know exactly what happened in the case of the Cardinales, IVF identification mistakes can occur from a variety of errors. Insider notes fertility clinics all differ in the ways they identify embryos – “it could be as basic as handwritten labels taped to vials or as modern as technologies that use radio frequency to link vials to patient medical records.”

At some point, a human is involved in this process and, as we know, humans make errors. Fertility clinics must have safeguards and checks and balances to minimize these risks as much as possible. They should have a tight chain of custody process with eggs, sperm, and embryos to avoid the chance of mix ups. Although errors are rare, it is impossible to eliminate all chances.

Have fertility clinic errors happened before?

The Cardinales are hardly the first family devastated by an IVF mistake. In 2018, two major tank storage failures at egg freezing clinics in Ohio and California caused the loss of thousands of eggs and embryos. Then there was the CHA Fertility Center case, also in 2018. In this case, the Center mixed up the embryos of three families, throwing all of them into chaos, and sparking custody concerns.

The Staten Island embryo case also made headlines back in 2000 when a woman gave birth to another woman’s biological child after an embryo mix up. This case turned into a bitter custody battle where the birth mother eventually lost visitation rights to the biological parents. Both families eventually filed malpractice and negligence suits against the fertility clinic.

How can I protect myself from an IVF mix up?

If you are considering IVF, as a patient and client, you can take a few steps to ensure the clinic you use follows accepted guidelines, like those from the American Society for Reproductive Medicine (ASRM) or the Society for Assisted Reproductive Technology (SART). After you have chosen a clinic, you can search online to discover whether they have any recorded FDA violations or other issues that warrant further investigation.

The president of SART, Timothy Hickman, told TODAY that prospective clients should note that clinics with high rates of multiple embryo transfers may be a red flag. Although in the past, multiple embryo transfers were common due to limited technology, this is no longer necessary. It is certainly possible to naturally have twins with IVF, but Hickman points out, “A lot of multiple births (like twins or triplets) would be a red flag. If they’ve had any FDA violations or lost their status (as a SART clinic), that would be a red flag.”

Additionally, most IVF clinics report their data to the CDC. If your clinic is not reporting their data to the CDC, you have reason to be suspect. You should also feel comfortable asking the clinic how they keep their genetic materials organized, stored, and what safeguards and protocols they use to protect it. You absolutely deserve informed answers to these questions, as well as what might happen in the event of an error or disaster.

We bring you this story today to emphasize the point that no pregnancy, whether you use scientific intervention or not, whether you spend thousands of dollars or not, is guaranteed to be a success. Entering the process as informed as possible can help keep you, your baby, and your family safe.

The Columbia attorneys at Plaxen Adler Muncy, P.A. are here to help families when they need it most. Call our experienced malpractice and negligence attorneys if a medical professional’s carelessness has caused you harm. To schedule a free consultation, call 410-730-7737 or fill out our short contact form. We serve clients throughout Maryland from a variety of office locations.