Couple sues fertility clinic after giving birth to son with cancer gene

A couple has sued a fertility clinic in California claiming that it transplanted an embryo with a cancer mutation during an IVF process even though the couple had warned them against it.

Jason and Melissa Diaz state in the Los Angeles legal filing that the HRC Fertility clinic has demonstrated a “tragic pattern” of using eggs, sperm, and embryos “in a manner contrary to its patients’ instructions” and that the clinic withheld information from clients.

The Independent has reached out to HRC Fertility for comment.

The couple states that within a year of the birth of their son, they found that he had the CDH1 mutation for hereditary diffuse gastric cancer, according to ABC News.

It’s a genetic disease that raises the risk of a type of stomach cancer, the National Institutes of Health states.

Mr Diaz was 32 when he was diagnosed with diffuse gastric cancer in 2018. He underwent chemotherapy and stomach-removal surgery. Genetic testing revealed that he had the CDH1 mutation, the suit states.

During a press conference on Wednesday, Mr Diaz said he and his wife decided to use IVF – in vitro fertilization – to have kids to be able to avoid the child having the mutation.

Jason and Melissa Diaz say they found their son had the CDH1 mutation for hereditary diffuse gastric cancer (Screenshot / ABC News)
Jason and Melissa Diaz say they found their son had the CDH1 mutation for hereditary diffuse gastric cancer (Screenshot / ABC News)

“I wouldn’t want anyone on earth to experience this type of pain and now I will be forced to watch my own son, my own flesh and blood, go through this after Melissa and I worked so hard to protect him,” Mr Diaz told the press, according to ABC. “Every day my heart is hurting for my baby boy, knowing the pain and challenges he has ahead of him.”

The couple states in its lawsuit that they told the clinic and the physician named in the legal filing, Dr Bradford Kolb, a reproductive endocrinologist, that they had chosen IVF to avoid the mutation being passed on.

They say in the suit that they also tested their embryos for the breast cancer mutation BRCA-1, which is carried by Ms Diaz.

“Dr. Kolb knew from the time of his first visit with them, on December 12, 2018, that they intended to avoid passing on this rare mutation for stomach cancer,” the legal filing says. “Jason and Melissa’s genetic counselor sent reports regarding testing for the specific mutations directly to Dr. Kolb in 2019.”

The Independent has reached out to Dr Kolb for comment.

Dr Kolb transferred an embryo without either mutation in August 2020 which ended in a miscarriage. A second transfer took place in January 2021, which lead to the birth of their son. The legal filing alleges that the couple was told that the embryo didn’t have the CDH1 gene, but records subsequently revealed that it did.

“HRC told us that we had one male embryo that had my BRCA-1 mutation and not the stomach cancer mutation,” Ms Diaz told the press on Wednesday. “That embryo was going to be our plan B because the BRACA mutation causes breast and ovarian cancer, so the likelihood of it negatively impacting a boy was significantly less than a girl.”

“So in January 2021, we informed HRC that we wanted to proceed with the male embryo that HRC told us only had the BRCA-1 mutation,” she added.

The couple found out that the embryo had had the gene in July 2022, the suit states. They were preparing for another embryo transfer at the time in the hope of having a second child.

“To her horror, Melissa also recognized the first embryo – clearly designated as carrying the mutant allele for hereditary diffuse gastric cancer – as the embryo transferred on January 8, 2021,” the legal filing says. “Embryo #1 had become her beloved infant son.”

The lawsuit adds that the clinic allegedly “falsified records” that covered handwritten information revealing which embryo had been used.

“HRC Fertility’s falsified records from October 2022 are evidence of HRC Fertility’s knowledge of and intent to hide its misconduct,” the legal filing says, adding that records, including the handwritten information, was handed over in December of last year.

The lawsuit is targeting “HRC’s fraudulent concealment of material information to its customers – more particularly, the fact that HRC Fertility has a long history of misusing its customers’ biological material, in direct contradiction to its customers’ instructions”.

“Moreover, it concealed that its processes and procedures are insufficient to prevent such grave errors,” the document states. “Had it made such disclosures, Jason and Melissa never would have entrusted HRC Fertility and Doctor Kolb with their genetic material.”

The couple is aiming for monetary damages and injunctive relief, and they’re trying to get a jury trial.

HRC Fertility told ABC that it “stands by the professionalism and expertise of our medical staff”.

“We take all of our patients’ choices and concerns very seriously and are committed to providing the highest quality of care,” they said in a statement. “We deeply empathize with this family’s situation. However, the patients associated with the case sought genetic testing and genetic counseling outside of HRC Fertility, and with an outside party; they wished to have a male embryo transferred, which we carried out according to the family’s explicit wishes and in accordance with the highest level of care.”

“We have successfully helped thousands of individuals, couples and families become loving parents, including the patients involved in this story,” they added.

Ms Diaz told reporters on Wednesday that “I’m very scared and nervous to go through it again to try to have a second baby, but this time, I will ask my questions. I will double check”.

“It’s heartbreaking that it had to come to this, but just be aware of what’s going on with your own body, what they’re trying to do with your body,” she added.

The Independent has reached out to HRC Fertility for comment.