Nine Couples Sue Fertility Clinic For Allegedly Implanting ‘Dead Embryos’ During IVF Procedures

Nine couples are suing Ovation Fertility in Newport Beach, California, alleging the in vitro fertilization (IVF) provider knowingly implanted deceased embryos into patients to cover up a lab mistake.

There are at least two joint lawsuits pending against the provider, according to People.

The filings allege that a lab embryologist wrongly injected the embryos with hydrogen peroxide or a different toxic substance instead of a sterile solution while they were in an incubator, which caused the embryos to be “killed instantly.” 

The lawsuits further alleges that Ovation employees were aware that the embryos were deceased when they were implanted but chose to have “these dead embryos [implanted] into the would-be mothers.” 

Specific charges against the facility include negligent misrepresentation, fraud, negligence, and medical battery, per ABC News.

While most plaintiffs chose to remain anonymous, one couple spoke with People about their experience at the clinic and why they chose to pursue legal action.

Brooke Berger and her husband Bennett Hardy began pursuing IVF treatments two years ago. They expressed distress at finding out the procedure they went through at Ovation had no chance of success. “It’s been very difficult and has taken such a toll,” Berger told the outlet. “There was no chance at all. We found out that we went through all of this for nothing. It was really heartbreaking.”

Their attorney Robert H. Marcereau said, “The story that came up more often and more consistently — at least three or four times with our clients — getting it secondhand from their doctors, was this notion that somehow hydrogen peroxide had been accidentally introduced into the incubator while the embryos were there, which hydrogen peroxide, it’s basically like battery acid to those embryos.”

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“It’s a very caustic substance, particularly if it’s a higher percentage strength. And it was lethal to them. That’s why there was a 100% mortality rate for these embryos during this period. But Ovation has never come out and said exactly what happened,” the attorney continued. “They don’t have qualified personnel and protocols to ensure things like this don’t happen.”

The couple further alleges that the IVF provider attempted to refund the cost of the procedure to avoid litigation.

A spokesperson for Ovation gave a statement to People via email. 

“Ovation Fertility has protocols in place to protect the health and integrity of every embryo under our care. This was an isolated incident related to an unintended laboratory technician error that impacted a very small number of patients,” the spokesperson wrote. 

“As soon as we recognized that pregnancy numbers were lower than our usually high success rates, we immediately initiated an investigation. We have been in close contact with these few impacted patients since the issue was discovered. We are grateful for the opportunity to help patients build a family and will continue to implement and enforce rigorous protocols to safeguard that process.”

The pending lawsuits are seeking jury trials and unspecified compensation.

“We can’t speak to whether or not there may be some criminal action,” Marcereau went on. “We haven’t gotten to the bottom of what happened with the embryos. But it can certainly be criminal. We have a lot of questions and no answers yet. That’s what this litigation is going to be about. We want answers for these grieving couples and ensure nothing like this ever happens again.”