Los Angeles: A couple from California, whose viable embryo was mistakenly transferred to complete strangers in New York, has filed a lawsuit against the fertility clinic at the centre of the "nightmarish" mix-up.

It follows a separate lawsuit filed earlier this week against CHA Fertility Center in Los Angeles by the New York couple who gave birth to twin boys – neither of whom was genetically linked to them or each other – on March 31.

Anni and Ashot Manukyan describe their lawsuit against a fertility clinic during an interview in Los Angeles.Credit: Peiffer Wolf Carr & Kane via AP

About a decade ago, Anni and Ashot Manukyan of Glendale, California, entrusted their embryos to CHA Fertility Center in Los Angeles that promised its in vitro fertilisation technique would lead to a baby.

When they returned for a transfer last year, one of the embryos took. But the couple say it was implanted in the wrong woman, who then gave birth to their son in upstate New York.

When they discovered the error, the couple say, it took an agonising legal fight – "the most excruciating period of their lives" – to reclaim the child.

"What Anni and Ashot discovered, much to their horror, was that their son had been stolen from them when he was still an embryo and implanted into a stranger that later became his birth mother," says a lawsuit filed on Wednesday in Los Angeles County Superior Court.

The case mounted by the couple is the second in the past 10 days targeting the CHA Fertility Center in Los Angeles, as well as several of its leaders.

The first was filed by the New York woman and her husband, who say they were operating under the false assumption that the embryos were their own.

Instead, they say, they were forced to relinquish custody of twins formed from genetic material belonging to two other couples, who had also sought the clinic's services and whose embryos had been transferred to the birth mother without the knowledge or consent of any of the parties.

The civil claim, filed last week in the Eastern District of New York, alleges medical malpractice, negligence and intentional infliction of emotional distress, among other counts.

The new lawsuit in Los Angeles levels similar accusations, as does the federal claim, with the addition of an alleged breach of California's penal code, which makes it unlawful to "knowingly use sperm, ova, or embryos in assisted reproduction technology, for any purpose other than that indicated by the sperm, ova, or embryo provider's signature on a written consent form".

Violation of the statute is punishable by imprisonment for between three and five years, a fine of no more than $50,000, or both.

Anni Manukyan has described the situation as “a non-stop nightmare.Credit:Peiffer Wolf Carr & Kane via AP

An attorney for CHA Fertility did not return a request for comment. The clinic has not returned several requests made this week.

It remains unclear, from the two lawsuits, what happened to the other boy, custody of whom the New York couple also ceded, according to the federal suit.

The clinic was able to make contact with his biological parents, court filings indicate, but they have not come forward publicly.

The lawsuit in Los Angeles seeks compensatory, emotional and punitive damages. It describes the human cost of the alleged mishandling of the genetic material.

The Manukyans trusted CHA Fertility and its staff, they recount in their lawsuit, "with their dreams of having a child, as well as with their most sensitive and important property: their embryos".

The lawsuit further states that medical providers at the clinic, when they said they were implanting in the woman's uterus one of the embryos she had created with her husband, "transferred at least one embryo of a stranger to Anni".

More women are seeking the services of fertility clinics.

"In other words, Anni was injected – against her will – with the sperm and egg of a man and woman who are complete strangers to her," the filing recounts.

The husband and wife say they still don't know whose embryos were transferred to Anni – not leading to successful pregnancies – when at least one of theirs wound up going to someone else.

All they know, they say, is about the one transferred to the New York woman, identified only by her initials, AP, in her lawsuit.

Meanwhile, AP and her husband, YZ, say they have not been informed of where their embryos went. Court documents indicate that the two couples were in the clinic for embryo transfer on the same day in August 2018.

While the two couples make parallel claims against the clinic, the second lawsuit also sheds light on the bitter process of allocating rights to the babies born in New York state, a question that divided the two sets of clients at the clinic.

Despite the clinic's assurance to the contrary, the Los Angeles lawsuit says, "the New York couple made clear that they wanted to retain custody of Anni and Ashot's son".

In response, the Manukyans filed a habeas corpus petition in family court, according to the lawsuit, and flew to New York to try to recover the newborn. They flew home with him 11 days later.

Surrogacy and gestational carrier laws differ by state. New York prohibits paid arrangements, and experts say surrogacy contracts are not enforceable in court.

Between 1999 and 2013, gestational surrogacy – in which the surrogate has no biological link to the baby – resulted in the birth of 18,400 infants, according to the Centers for Disease Control and Prevention (CDC).

How did it happen?

Anni and Ashot Manukyan were married in 2007, according to the legal filing. After trying unsuccessfully to have a child, they turned to assisted reproductive technology and enlisted the services of CHA Fertility to complete an embryo transfer in 2011. This led to the birth of a daughter.

A second transfer, of what they thought were two remaining embryos, occurred in August 2018.

"To this day, Anni and Ashot do not know whose embryos were actually transferred to Anni on that day," the lawsuit says.

They learned 10 days after the transfer that Anni wasn't pregnant. In October 2018, they undertook a new IVF cycle, which involved hormones for Anni that caused her to develop precancerous cells in her uterus, the lawsuit says.

Two biopsies and the insertion of a intrauterine device caused "extreme physical pain and mental distress," according to the suit, which does not state the outcome of the new IVF cycle.

Throughout the process, the filing asserts, the couple paid more than $120,000.

According to the most recent data published by the CDC, fertility clinics in the United States conducted more than 263,000 cycles with assisted reproductive technology in 2016. Of those, about 81,000 resulted in pregnancies, which led to nearly 66,000 deliveries.

How much did the CHA know?

In April of this year, the clinic's COO asked the Manukyans to come in for a cheek swab, saying the procedure was a "routine quality control measure."

They didn't learn until the following day, their lawsuit contends, that the cheek swab had established their biological relationship to one of the babies born to the couple in New York, as doctors told them in a meeting at the clinic.

Even with their son now in their care, they say they have been irreparably harmed by the ordeal.

"Defendants' misconduct robbed Anni of the ability to carry her child throughout his fetal development," they argue in the legal filing.

"Anni never had the opportunity to grow and bond with her son, to feel him kick in utero, and to watch him in ultrasounds. Anni and Ashot had no ability to ensure their son's health and well-being through prenatal care and nutrition and may never know what steps his gestational carrier took to protect and promote his fetal development.

"Anni and Ashot are devastated that they never were able to experience the wonder of their son's childbirth; they never saw their baby's entrance into the world or cuddled him in his first seconds of life – moments that other parents treasure for the rest of their lives."

The aspiring parents in New York similarly say they "suffered significant and permanent emotional injuries for which they will not recover".

Their lawsuit further states that AP, who carried the babies, suffered "physical and emotional injuries."

It also recounts how questions first arose when sonograms suggested that AP was carrying male twins, contrary to what clinic staff had told them about the gender of the embryos. The mistake became apparent when neither newborn appeared to be Asian, at odds with the couple's ethnicity.

The parents in Los Angeles, in the claim filed on Wednesday, describe the experience as "a non-stop nightmare."

The Washington Post

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