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What To Do If Your Fertility Clinic Used The Wrong Sperm

Dealing with infertility can be an emotional journey, and for many couples in vitro fertilization (IVF) offers hope. However, when a fertility clinic makes a serious error, the consequences can be devastating. This is particularly true when an IVF patient is impregnated with the wrong sperm or embryo. If you find yourself in this situation, it is important that you understand your rights and take steps to get justice. Our team of IVF negligence attorneys at Gersowitz Libo & Korek, P.C. is here for you. We can evaluate the unique facts of your case free of charge and let you know if you have a claim that can be pursued. You can reach out to us anytime at (800) 529-9997.

How do Sperm / Embryo Mix-Ups In Fertility Clinics Take Place?

Nearly all instances of sperm and embryo mix-ups in fertility clinics involved some amount of human error. The major cause of embryo transfer (ET) errors is improper labeling and poor communication. According to one study in the Journal of Assisted Reproduction and Genetics, “Improper labeling or record keeping may result in the wrong embryo specimen being used in ET. It is essential that IVF clinics and all personnel involved in handling embryos be meticulous and diligent in labeling and accounting of specimens. Furthermore, clear and concise communication between lab personnel, such as the embryologist and the reproductive endocrinologist, can reduce the risk of wrongful ET.” There are a number of steps that fertility clinics should take to prevent ET errors.

  • Strict Protocols: Fertility clinics should establish clear and strict protocols for handling gametes (sperm and eggs) and embryos during the IVF process. These protocols should include verification procedures at each step of the process.
  • Double-Checking Procedures: Errors are much less likely to take place when two qualified staff members independently verify the identity of the embryos and gametes before any procedures.
  • Technological Verification: Fertility clinics can also use technology such as barcoding to track and verify the identity of gametes.
  • Training and Education: Fertility clinics should provide regular training and education to all staff members on the importance of accurate patient identification during IVF.
  • Strict Documentation: Fertility clinics should maintain accurate and detailed records of all procedures, including the identity of the embryos and gametes used.
  • Adherence to Regulations: Fertility clinics must ensure compliance with all relevant industry guidelines set forth by the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART).

By implementing all of these steps, fertility clinics can greatly reduce the risk of embryo transfer errors. Part of the reason that errors may occur is that in vitro fertilization clinics are not nearly as well regulated as other medical bodies. According to Vox, “There are more than 450 fertility clinics across the country, and like most aspects of US health care, the IVF industry is regulated by a patchwork of federal and state rules as well as professional self-governance, all with varying levels of penalties and enforcement mechanisms.” The primary consumer protection law for IVF clinics is the Fertility Clinic Success Rate and Certification Act of 1992. However, there are no serious legal consequences for clinics that fail to participate.

Liability For Sperm / Embryo Mix-Ups In Fertility Clinics

Transferring the incorrect sperm or embryo into an IVF patient is an inexcusable outcome for all involved. It can expose fertility clinics, lab technicians, and reproductive endocrinologists to liability for malpractice. Medical malpractice occurs when a doctor or hospital deviates from the applicable standard of care. There is no single standard of care for any health-care field. However, a doctor’s or hospital’s standard of care is met when a doctor or hospital with an equivalent skill set would have followed the same procedures and guidelines under identical circumstances. Several other claims may be alleged following such an incident.

  • Breach of Contract: A fertility clinic may be liable for a breach of contract if the patient’s agreement with the clinic specified certain procedures and standards of care that were not met.
  • Emotional Distress: Patients who undergo IVF treatments can experience significant emotional distress in the event of negligence or adverse outcomes. Implanting the wrong sperm or embryos into a patient may lead to claims for emotional distress damages.
  • Punitive Damages: Implanting a patient with the wrong sperm or embryo is such an egregious outcome that fertility clinics may face punitive damages. Similar cases have often led to damage awards that surpass the policy limits provided by medical malpractice insurance plans.
  • Wrongful Birth: Fertility clinics can face wrongful birth claims for allowing or causing a baby to be born with a disability. A very common wrongful birth scenario may occur if a doctor fails to properly diagnose a fetus’ serious medical problems or handicaps.
  • Lack of Informed Consent: Doctors and hospitals have a legal obligation to disclose medical mistakes as soon as they are discovered. This principle is affirmed by numerous medical bodies, including the American Medical Association, the American College of Physicians, and the American College of Obstetricians and Gynecologists.

If an embryologist made a mistake that led to the incorrect sperm or embryo being implanted in a patient, their employer could be held at fault. Employers are typically liable for the wrongful acts of their employees under the legal doctrine of respondeat superior. According to Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999) respondeat superior will apply “so long as the tortious conduct is generally foreseeable and a natural incident of the employment.” It is crucial that evidence is properly preserved after any instance of negligence at a fertility clinic. There could potentially be several liable parties.

When Implantation Errors Are Intentional

In the vast majority of cases, implantation errors are unintentional and the result of negligence on the part of laboratory technicians or reproductive endocrinologists. As discussed previously, this may occur due to improper labeling or record-keeping. But in a number of cases, implantation errors are the result of the intentional actions of fertility clinic doctors. Fertility fraud occurs when a fertility doctor uses their own sperm to impregnate patients without their informed consent. There have been at least 50 doctors in the United States accused of fertility fraud. What follows below are just a few of the doctors accused of misconduct.

  • Dr. Merle Berger voluntarily surrendered his medical license after one of his former patients accused him of secretly fathering one of her children.
  • Dr. David Claypool allegedly assured one of his patients that her sperm donor would be selected based on traits that she specified. However, her 33-year-old daughter later learned about her biological father’s identity after taking a DNA test with 23andMe.
  • Dr. Morris Wortman was a prominent fertility doctor in New York. There are several lawsuits pending that allege he used his own sperm in the 1980s to impregnate several women.
  • Dr. Donald Cline, of Indiana, has been accused of using his own sperm to father at least 94 donor children. Three cases have settled, and several others are pending.
  • Dr. Cecil Jacobson, of Virginia, was also accused of using his own sperm to father as many as 75 children through his fertility practice.

Fertility fraud is a serious breach of legal and ethical medical guidelines. In a number of situations, victims may not even realize what happened until several decades later. Indeed, much of the fraud that has taken place has only been uncovered through widely available DNA tests. It is crucial that fertility clinics have safeguards in place to prevent fertility fraud. This should include the use of strict oversight mechanisms to confirm the genetic origin of sperm / gametes. Patients and couples interested in IVF should inquire with their fertility clinic about what measures they take to prevent malpractice.

Steps To Take If Your Fertility Clinic Used The Wrong Sperm

Getting pregnant through the use of IVF can be emotionally and financially draining in the best of circumstances. The average cost of a single IVF treatment can be as much as $30,000. This process can turn into a nightmare in the event that a fertility clinic impregnates a patient with the wrong sperm or embryo. These cases often result in lengthy, multi-party custody battles, which can be extremely stressful for all involved. If you suspect that a fertility clinic has used the wrong sperm, there are several steps you should consider.

  • Seek Medical Attention: If there are immediate healthcare concerns, it is best to seek medical aid from a reputable healthcare provider.
  • Document Everything: All records related to your IVF treatment should be preserved. This will include emails, medical records, informed consent agreements, and conversations with your doctor.
  • Seek Legal Counsel: It is important to speak with a lawyer who specializes in fertility law. They can evaluate the unique facts of your case and help you understand your rights and options.
  • File A Lawsuit: After consulting with a lawyer, you may have the option to file a lawsuit against the fertility clinic or other parties for negligence. A lawyer can help advise you on the best course of action.
  • Seek Support: It is important that victims of IVF negligence take steps to protect their emotional and physical well-being. Consider support groups and therapists that can help you cope with your distress.

Fertility clinics will often do everything in their power to deny responsibility for adverse outcomes during IVF. In many situations, they might blame other outside parties or doctors. This is one of the reasons it is crucial to seek experienced legal counsel. There is a tremendous peace of mind that comes with having an attorney fighting on your side. There are no up-front costs associated with hiring an attorney to help you with your claim. They only get paid by the opposing party if they are able to successfully resolve your case.

Getting Legal Help After IVF Negligence

Hiring a skilled attorney can often mean the difference between winning or losing your legal claim against a fertility clinic. Fertility clinics and their insurance providers have teams of lawyers fighting on their behalf to defend their own interests. An IVF negligence attorney can help level the playing field to ensure that your interests are being taken into consideration throughout any litigation.

If you or someone that you love has been harmed by the wrongful actions of a fertility clinic or reproductive endocrinologist, you may have legal recourse. The IVF negligence attorneys at Gersowitz Libo & Korek, P.C. are committed to helping victims of malpractice. Our law firm is partnered with IVF industry experts throughout the United States to help get you the best outcome possible. We have consistently achieved exceptional results in the courtroom and have recovered over $1 billion in verdicts and settlements for our deserving clients. Whether you just have legal questions or are thinking about hiring an attorney, we are here to help. You can reach out to us anytime at (800) 529-9997.


Who can be held liable if an IVF patient is impregnated with the wrong sperm?

Numerous parties can be held liable for IVF negligence, including the fertility clinic, lab technicians, reproductive endocrinologists, and hospitals.

 Improper labeling and poor communication among fertility clinic employees are common causes of embryo transfer (ET) errors.

There are no up-front costs associated with hiring an attorney, and they only get paid by the opposing party if they are able to successfully resolve your claim.

Fertility clinics can take a number of measures to prevent the wrong sperm from being used. This should include adhering to strict labeling protocols.

The time it takes for a case to be resolved can vary greatly. But in most cases, it will take several years.

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