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CBS This Morning Reports On IVF Clinic’s Nonconsensual Use of Marfan Infected Sperm & Risk To Unsuspecting Children

Our client, Sarah Robertson, bravely shared her heartbreaking story on CBS This Morning:

From the online account:

High school sweethearts Sarah Robertson and her husband, Aaron, had always planned to have children. But in 2004, at the age of 29, Aaron suffered a fatal stroke.

“He was the best husband that any woman could ever want,” Robertson said.

As he lay dying in the hospital, Robertson made the decision to harvest some of his sperm. “I was thinking that there is a very good chance that my husband is going to die,” she told correspondent Anna Werner. “But I’ll have this, and I can have a child that will have his likeness, or his laugh to bring with me, and that gave us all so much comfort and hope.”

She selected a clinic in the Los Angeles area to freeze six vials of Aaron’s sperm. But when she was finally ready to have a baby, in 2014, she got a shock.

She said the clinic, which had changed hands and was now known as Reproductive Fertility Center, couldn’t find the frozen sperm. All six vials were gone — and with them, her hope for a baby from her husband.

“It was a like a nightmare,” she said. “Like, how could this be happening?”

Robertson has filed a lawsuit. Hers joins legal action taken against other sperm banks.

New IVF Technique ‘Cheaper and Much Less Invasive’

An international team of researcher developed a new in-vitro fertilization technique that could soon replace existing treatment methods. The lead researchers, Associate Professor Robert Gilchrist, explained that “[t]his new treatment is a simpler, cheaper, more patient friendly infertility treatment compared to IVF.” The technique has been in its testing phase for the past 15 years, and will begin its human trials in approximately two years.

The improved IVM technique employs a special protein called cumulin, which was developed in the lab to mimic growth factor proteins of eggs in the ovary, combined with signalling molecules called cyclic-AMP (cAMP) modulators.
“What we’ve done is we’ve modelled a new protein which mimics the egg’s own unique protein that actually communicates with the cells that are supporting the egg during the maturation process,” co-researcher Associate Professor Jeremy Thompson, head of the University of Adelaide’s Early Development Group, told news.com.au.
“That substantially lifts the quality of embryos that are produced when we undergo this in-vitro maturation technique,” he says.
He says the new IVM method uses more than 90 per cent less hormones than in IVF, which could cut between a third to half of the cost associated with the treatment.
Standard IVF treatment requires women to take a hormone treatment to stimulate egg cell growth in the ovary — these hormones can cause great discomfort for women and can lead to medical complications such as ovarian hyper stimulation syndrome.
IVM, on the other hand, requires minimal hormone treatment and involves removing the egg from the ovary before it matures and growing it in a cell culture.

You can access the full article here.

Single British Father Speaks Out After Groundbreaking Ruling

This week, BBC secured an interview with a single British man who was denied a parentage order over his son who was born to a surrogate mother in the United States. He was denied the order because Britain’s surrogacy laws only allow couples, not single persons, to secure an order. British law, under the Human Fertilisation and Embryology Act of 2008, allows “husband and wife,” “civil partners of each other,” or “two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relation to each other” to apply for a parental order allowing them to take custody of a child born to a surrogate mother.

In May, the single father won a High Court ruling, and the government has since agreed to update the law to reflect the omission of single parents. Unfortunately, as we are well accustomed to here in the United States, the government works at a slow pace, and the child is still considered a ward of the court:

[U]nder UK law, the surrogate is treated as the legal mother and she is the only person in the UK who has the responsibility and authority to make decisions about the child’s day-to-day care.
This means that [the father] and [son] face potential problems.
“When he’s older, I can’t choose which school he goes to. I took him to hospital once and they asked me ‘do you have parental responsibility?'”, [the father] said.
“Not being able to apply for a passport was an issue – because I wanted to take my son away on a trip for a short period of time.”

You can access the full interview here.

While it is possible for the father to adopt his son, he has instead decided to challenge the law so that other single British parents will not find themselves in similar circumstances. In the meantime, it is important for professionals working with intended parents to counsel their clients when working with single parents from Britain.

Same-Sex Couples Sue after Being Denied Insurance Coverage for Fertility Treatment

Four women filed suit in New Jersey claiming that they were discriminatorily denied coverage for fertility treatment based their sexual orientation. The law in New Jersey requires that a woman prove that she is medically unable to have children, and that she engage in unprotected sexual intercourse with a man for a period of one to two years, depending on her age, prior to receiving insurance coverage for the treatment.

According to the civil suit, the Krupas have been trying to conceive a child since 2013. Fertility doctors found several benign cysts on Erin Krupas’ uterus, and found that she suffered from endometriosis, making her infertile, the suit says.

State law requires large insurance providers to cover costly fertility treatments for patients medically unable to have children. The couples take issue with how the law defines infertility, which includes the inability to become pregnant after one or two years of unprotected sex, depending on the woman’s age. Insurance companies have been able to deny coverage to gay patients who, although they have been medically diagnosed infertile, do not fit the definition, the suit says.

“Despite having a medical diagnosis of infertility, because, as a lesbian in a committed relationship, Erin could not show that she had unprotected sexual intercourse with a man for the requisite period, the Krupas were not protected by the mandate,” the suit reads.

The full article can be found here.

New Jersey may soon be joining Maryland and California, the only two states to expressly require insurance companies to cover infertility treatments for same-sex couples.

Bill Requiring Compensation to Women Donating Eggs for Research Purposes Considered by California Legislature

California law currently prohibits payment in excess of the direct expenses undertaken by women donating human oocytes for the purposes of medical research. In February 2016, Assembly Bill No. 2531 was introduced by Assembly Member Autumn Burke. This bill would require that women donating their eggs be compensated for their “time, discomfort, and inconvenience in the same manner as other research subjects.” Last week, the bill was ordered to a third reading and is quickly making its way through the Legislature.

The stated purpose of the bill is to expand the market of willing participants. Currently there are few women who participate in research “creating barriers to reproductive research that could benefit all women.” The bill cites one of its missions is to expand research that could better predict embryo quality “so that women undergoing in vitro fertilization (IVF) can confidently choose to have a single embryo implanted with a high probability of achieving a successful pregnancy, instead of multiple embryos.”

Compensation will be determined by “human subject research panels and institutional review boards,” and will not take into account the amount paid to women providing human oocytes for fertility purposes.

This bill has been met with some haste, most notably by former state senator Deborah Ortiz who wrote the 2006 law prohibiting compensation to women when providing egg donations for research purposes. She cites three grounds for her opposition:

First, we have very limited information on the long-term health effects of the egg retrieval process. Second, women who undergo egg retrieval are not research subjects in the traditional sense, as proponents assert. Finally, paying for women’s eggs for research purposes contradicts well-established national recommendations and state policy.

Her full remarks can be found here.

The simple fact remains that women are currently compensated for donating their eggs for the purposes of fertility treatment. If research is to be conducted, science will need to keep up with the industry, which may very well mean that women providing samples for research will need incentives the same way people are currently compensated for undergoing medical treatment for other research purposes.

AB-2531 can be read in full here.

‘World’s Largest Sperm Bank’ Halts Release of Donor Sperm and Eggs Pending an FDA-Approved Zika Screening Test

In response to growing evidence showing that the Zika virus has spread through infected mosquitoes in the continental United States, Cryos International, a sperm bank headquartered in Orlando, is awaiting an FDA-approved donor screening test prior to the release of donor sperm and eggs in the U.S.  The vice president of the company, Angel Tillis, explained in a statement last week that she is “sure that the FDA will quickly release a screening test,” but in the meantime, donor eggs and sperm will remain quarantined.

Her full remarks can be found here.

New York Times Follow-Up Story On IVF Facility: “files without vials and vials without files”

 Sarah Robertson, who filed a lawsuit against a sperm bank she said lost her husband’s frozen sperm, outside her home in Leona Valley, Calif., in June. Credit Kendrick Brinson for The New York Times

Sarah Robertson, who filed a lawsuit against a sperm bank she said lost her husband’s frozen sperm, outside her home in Leona Valley, Calif., in June. Credit Kendrick Brinson for The New York Times

The New York Times Insider Edition just posted a follow-up story on our case against a fertility clinic for misappropriating Sarah Robertson’s deceased husband’s sperm:

The story had a twist that made it especially poignant. Her husband, Aaron Robertson, died of Marfan syndrome, a rare genetic disease that carries a 50 percent chance of being passed on to offspring. And Ms. Robertson had reason to worry that the fertility center where she had stored the six precious vials of his sperm had misappropriated them and used them to impregnate, or create embryos for, other women — without warning them of the Marfan risk.

One evening last month, the Robertson family gathered at their Montecito, Calif., home to tell me their story.

For two hours, they took turns: Mr. Robertson’s mother, Karen, talked about discovering that Aaron had Marfan syndrome, the disease that had wreaked havoc with his heart even before it caused him to have a stroke, fall into a coma and die at 29.

Sarah Robertson, who still calls her mother-in-law “Mom” a decade after her husband’s death, told of falling in love with Aaron when she was 16, marrying at 20, and — mostly because she had heard a radio segment about military men who froze their sperm before deploying — thinking to have her husband’s sperm frozen for later use.

“I did everything I could to make sure we could have a baby,” she said. “We always knew we’d have to use in vitro fertilization so the embryos could be tested for Marfan, which has a 50-50 chance of being inherited. But we thought we had time.”

It was a huge blow to learn, when she was finally ready to conceive the baby, that the vials were gone — and that her husband’s sperm might have been used for other women, Ms. Robertson said. Even as she was reeling from the realization that she would never have Aaron’s children, her main impulse was to protect others from her husband’s fate.

“My worst nightmare is that there may be babies and children walking around with Marfan that they got from Aaron, or women getting ready to use his sperm, if they aren’t warned,” said Ms. Robertson.

So she hired a lawyer to try to force the owner of the fertility center, Dr. Peyman Saadat, to send notices to families who had gotten sperm from the center while her husband’s sperm was stored there — and to pay for testing any impacted children and treating any who had Marfan.

There were months of mediation and negotiation, but Dr. Saadat refused to take those steps. Finally, last month, she filed suit….

But an investigator called her back, Ms. Robertson said, and told her, lawyer to lawyer, that the department had previously discovered the center’s abysmal record-keeping. “She told me there were files without vials and vials without files.”

We’d be remiss if we did not point out, again, that these kind of cases are aberrations. The overwhelming majority of IVF facilities have appropriate protocols in place to protect against their patients from this kind of heart wrenching incident. The takeaway from this case is that anyone considering any kind of medical treatment, of any type, ought to conduct their due diligence and select a reputable medical provider. Ignore the glossy websites, unsubstantiated statistics and bus bench advertising. Do your research and make an informed decision.

New York Times: IVF Lab Sued For Giving Infected Sperm To Other Patients

The New York Times has just reported on our lawsuit as well as other troublesome irregularities at sperm banks. It is critically important to keep these cases in context as they are outliers. They do not represent the tip of the iceberg, but rather the bottom of the cesspool:

Even as she mourned the death of her 29-year-old husband from a rare genetic disorder, Sarah Robertson was comforted by knowing that six vials of his sperm were safely stored at the Reproductive Fertility Center — in Tank B, Canister 5, Cane G, Position 6, Color Blue — waiting until she was ready to have the baby they had both longed for.

But 10 years later, when she was ready to use the sperm from her husband, Aaron, she got devastating news. All six vials were missing.

“I’d been completely focused on having something of Aaron’s live on, and now there was nothing,” said Ms. Robertson in an interview at her in-laws’ home in Montecito.

Now she and her in-laws are suing the Los Angeles clinic, and its owner, Dr. Peyman Saadat, accusing them of negligence, fraud, breach of contract and intentional infliction of emotional distress. The suit, filed in May, also says the clinic misappropriated Mr. Robertson’s sperm — which had a 50 percent chance of carrying Marfan syndrome, the disorder that killed him — and used it to supply other patients who would not know to undergo testing to ensure their babies did not inherit the disorder.

The Robertsons’ case is part of a new wave of lawsuits against sperm banks, highlighting claims of deception and negligence, and adding an array of challenges beyond the longstanding issue of undetected genetic problems….

Dr. Saadat, who was sued by Ms. Robertson, also faces a suit by Justin Hollman, a California man who froze five vials of his sperm before undergoing chemotherapy for testicular cancer at age 20. Years later, Mr. Hollman wanted his sperm transferred to his wife’s fertility doctor. When he was presented with paperwork, his lawsuit says, he noticed that it authorized the destruction of his sperm instead of the transfer.

After refusing to sign, the court papers say, Mr. Hollman got a call from Dr. Saadat later that day telling him the samples had been destroyed as a result of “human error.”

Mr. Hollman declined to discuss the case, and repeated calls to Dr. Saadat’s center and to his lawyers were not returned.

The Robertsons’ lawsuit also claims there was deception by the center, which on different occasions said the sperm either had never been stored there or had been destroyed in a fire. When Ms. Robertson initially asked for the sperm, according to court papers, the center told her that five of the six vials were missing. The complaint went on to say that Dr. Saadat urged her to try to get pregnant with the sixth vial, but the clinic’s manager later emailed that the sixth vial, too, was gone.

“When I got that email, I stood up and screamed,” said Ms. Robertson, who is a nurse practitioner.

The Robertsons still wonder what sperm Dr. Saadat would have used if Ms. Robertson had agreed to use the purported last vial to get pregnant.

“Was he just going to take someone’s sample at random?” Ms. Robertson asked. “It’s terrifying to imagine a health care business being operated so recklessly.”

Founder of Planet Hospital, Rudy Rupak, Indicted For Theft By Federal Grand Jury

Sadly, no surprise:

The founder of a San Diego-based medical tourism company was indicted by a federal grand jury on charges that he stole more than $2 million from infertile clients who sought his help in finding surrogacy services, the U.S. Attorney’s Office announced Wednesday.

Acharayya Rupak, a Canadian national living in Calabasas, acted as a broker between his Planet Hospital clients and Mexican clinics that provide egg donors, in vitro fertilization and surrogates, according to prosecutors.

According to the indictment, Rupak, 48, pocketed money from American clients that he was supposed to use to pay the clinics for various surrogacy services. The clinics didn’t get their money, and the clients never received the services, the indictment alleges.

“People who seek the help of a surrogate are on an exhausting, expensive and emotional journey,” said U.S. Attorney Laura Duffy. “They shouldn’t have their dream to have a child trampled by someone they trust to help them.”

Rupak, who made his first court appearance Tuesday, had his bail set at $50,000 and was ordered to return to court July 25.

Medical tourism companies like Planet Hospital facilitate travel to foreign countries to undergo medical procedures such as gastric bypass, organ transplants, tummy tucks or hip replacements at a more affordable price, prosecutors said.

In this case, Rupak acted as an intermediary, connecting U.S. clients with egg donors and in vitro fertilization clinics and surrogates in Mexico. Rupak’s medical tourism business had addresses in San Diego, Calabasas and Calexico.

In 2008, Rupak began offering international surrogacy services, which is the practice of paying a woman to have an embryo transferred to her womb and bear the child for someone else. Beginning in September 2009 and continuing until at least January 2014, Rupak solicited international surrogacy clients, luring them with promises of discounted prices and then hitting them with additional fees later, prosecutors said. He allegedly convinced the clients to send him thousands of dollars by falsely representing that their funds would be put into escrow accounts and used only to pay for medical services.

But according to the indictment, Rupak failed to forward the clients’ funds to service providers such as egg donor companies, IVF clinics and surrogacy services. These companies would then demand additional funds from Rupak’s clients, who had already paid for the services.

To cover up the theft, Rupak allegedly created unauthorized websites and email addresses in the name of a clinic and its physician in order to send emails to Planet Hospital clients, giving excuses for why Planet Hospital had not provided promised services or falsely claiming that surrogacy procedures were unsuccessful.

Rupak lied to his clients about success rates and falsely claimed ownership interest in two IVF clinics in Cancun, Mexico, according to the indictment.

Once the deception started snowballing, Rupak operated his business like a Ponzi scheme, using funds from new clients to pay for services provided to existing Planet Hospital clients, prosecutors allege.

–City News Service

You can read more about Rupak and Planet Hospital in our prior blogging here, here, here and here.

Come Meet Us In Australia If You Are Interested In Surrogacy!

We are heading to the Land Down Under to speak at the Families Through Surrogacy Conference on June 4th and 5th in Brisbane, Australia. We will also be available for private, one-on-one consultations in Melbourne on Thursday, June 2nd and in Sydney on Monday, June 6th.

If you are interested in meeting with our team of professionals for either a meet and greet or private consultation, please email Erick at erick@vmfirm.com.

Look forward to seeing you in Australia!


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Welcome to The Spin Doctor

Blogging about the legal, social and political issues of the day with an emphasis on reproductive rights and bioethics.

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