‘Tragedy at the hands of a fertility clinic’: Family sues over sperm swap

Published by WCBE Central Ohio NPR

By Mike Foley

8 August 2019

This past Christmas, Rebecca Cartellone gifted her parents a home DNA test because they all thought it would be fun to learn more about their Italian heritage.

The plan, said her father, Joseph Cartellone, “couldn’t have been more innocent,” but what they learned instead through the results they received in February “couldn’t have been more shocking.” They showed Rebecca was genetically tied to a lot of people she had never seen or heard of before, but had no biological connection to Joseph.

Joseph and his wife, Jennifer, had turned to in vitro fertilization about 25 years ago to have Rebecca, and he had never suspected that his daughter wasn’t biologically related to him. But subsequent paternity tests after the home DNA kit backed up the startling fact.

Through tracing down more information on Ancestry.com, the Cartellones have narrowed the possible sperm donors down to five men, one of whom worked at the hospital that provided the couple with fertility treatment. On Wednesday, the Cartellones sued the provider, Cincinnati’s Institute for Reproductive Health, and its affiliated Christ Hospital.

Joseph Cartellone later learned other families have faced similar situations, which he described as “tragedy at the hands of a fertility clinic.” The finding, he said, caused his daughter emotional distress and confusion.

“She has no idea who her biological father is,” he said. “She now knows nothing about her genetic background, her family history, and medical history.”

The Cartellones hope not only to hold the clinic accountable but to get answers. They don’t know whether the sperm was used accidentally or on purpose, or whether the doctor used someone else’s sperm because the attempt at fertilization failed. They also don’t know what happened to Joseph’s sperm, including whether it was successfully used in another IVF procedure or whether it resulted in the creation of a biological child.

“The effects of this unthinkable misconduct will be felt forever,” said Joseph Peiffer, one of the family’s attorneys. “Despite all this, the fertility center has refused to make amends. They have refused to take responsibility. They have not even apologized to this family.”

The Cartellones are just one of more than 200 clients the law firm Peiffer Wolf Carr & Kane says it has been working with who have been wronged by fertility treatment. Others include a couple whose fertilized embryo was implanted in a stranger, cases in which embryos have been lost because the storage unit where they were being held broke down, and cases where a fertility clinic threw out embryos without asking a couple’s permission.

Peiffer said the cases were an illustration of an “out-of-control, unregulated industry.” The attorneys released a report Wednesday that argues the problems stem from a result of lack of regulations, or what they are calling the “near Wild West” of fertility clinics in the United States.

“We intend to bring accountability to big fertility,” Peiffer said.

Roughly 1 in 10 women in the U.S. seek help with fertility every year. There are 480 fertility centers in the U.S., representing a $2.1 billion industry. Roughly 2% of live births, or 69,000, happen each year with the help of IVF, which costs as much as $20,000 per procedure and often isn’t covered by health insurance.

“As an increasing number of people use infertility services, the industry has outpaced regulations and we are hearing about more and more abuses that happen in the industry,” said Naomi Cahn, professor at George Washington University Law School.

Other advocates have been lobbying states to create a category for fertility fraud so that families can have a way to bring violators to justice.

The American Society for Reproductive Medicine, which represents fertility clinics, says on its website that it has “one most highly regulated of all medical practices in the U.S.” It cites examples such as medical licensing requirements, discipline for doctor misconduct, and reporting to government agencies about how many treatments result in pregnancy.

Sean Tipton, spokesman for the group, said it was “never appropriate” for doctors to deceive patients, but noted that the Cartellone’s case occurred when regulations were different than they are today.

“At this point it is quite possible we have solved this problem,” he said.

The American Society for Reproductive Medicine worries about legislating more regulations, because questions about fertility treatment inevitably raise the abortion debate, which Tipton said blocks rational discussions on the issue. He noted that it was already difficult for families to afford fertility treatment, and that mandating insurance coverage was a better front to explore before adding regulations that would impose more costs.

“You can seek remedy for wrongdoing without having to invent a whole new regulatory scheme,” he said.

Still, the attorneys say more policing of the industry would help curb mix-ups. The government asks fertility clinics to screen donors for communicable diseases and to disclose the rates at which patients get pregnant, but the report they produced Wednesday says 12% of clinics don’t comply and don’t face a penalty.

“Right now there is no reporting requirements when they do something like this,” Peiffer said. “You have to catch it willy-nilly. We are getting the phone calls, not some government agency. That does not strike me as right.”

He and others recommended at a press conference Wednesday that the government pass laws to mandate inspections of clinics and labs, additional licensing requirements, and obligate clinics to publicize any mistakes. The attorneys pointed to the United Kingdom as an example that the U.S. should seek to emulate. There, the country’s 131 fertility clinics and 69,000 annual procedures have been regulated since 1990 by the Human Fertilization and Embryology Authority.

“We think of fertility clinics as highly professional organizations governed by strict rules and staffed by caring experts,” said Adam Wolf, one of the attorneys representing the Cartellones. “And some of them indeed, are well-meaning and well run. But the truth is that some of them are simply business people making billions of dollars in profits. The bottom line is that self-regulation for fertility centers is just not working.”

Joseph Cartellone said that his daughter wishes she hadn’t purchased the DNA tests, but that he feels heartened that it might bring about change to regulations.

“She is feeling some guilt over the Christmas present,” he said of Rebecca. “But I would say if this is some way for us to help change what’s happening, then it’s worth it.”

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