This Couple Is Suing Fertility Clinic After Losing Frozen Embryos in Freezer Malfunction

This Couple Is Suing Fertility Clinic After Losing Frozen Embryos in Freezer Malfunction

They considered the embryos their "frozen children."

By Marianne Garvey

One couple who lost their frozen embryos in a Cleveland fertility clinic’s meltdown is suing the hospital for losing what they considered their “frozen children.” 

Two class action lawsuits have been filed so far against University Hospitals following a refrigerator malfunction that destroyed nearly 2,000 eggs and embryos that were being stored there. 

Ohio-based couple Amber and Elliott Ash have hired Robert DiCello of Ohio based law firm DiCello Levitt & Casey LLC in order to take legal action against the hospital, where they stored their not-yet-used embryos. 

In their own words they tell Personal Space what they are going through: 

“I was diagnosed with a rare cancer and prior to going through chemotherapy, I decided to freeze my sperm long before I met Amber,” Elliott says, “In 2014 discussing our options, IVF became the main way of having children.” 

Amy says: “We are locals and and had known some people who had gone through the hospital and one of the physicians there, and it was a great fit. And as I think this case highlights, no matter the work they do, and you’re getting all the proper hormones and whatnot, it’s apparent the lab is not doing what they need to be doing on their end.” 

The couple tried a round of expensive and exhausting IVF in 2014 with Elliott’s frozen sperm and eggs retrieved from Amy during a procedure. 

“From that we were able to get 10 embryos that were fertilized and viable,” Amy says. “We underwent several transfers prior to our son being born. One resulted in a miscarriage, I didn’t get pregnant off another … we finally conceived our son in January 2015 and he was a frozen embryo. We had two additional embryos that were viable left, they were in storage since January 2014 with the goal of giving our son a genetic sibling.” 

Amy, 37, was on the phone with her mother when she learned of the freezer malfunction fro her over the phone. 

“That was how I first found out, I don’t even remember my real reaction at the time, I was in disbelief, ‘University Hospital in Cleveland?’
Then we looked at local media and went on the Internet and every local media outlet had this. There was a hotline the hospital had established, so I called Friday morning first thing when it opened. Our embryos were affected in the malfunction, but they couldn’t disclose anything else.”

Amy and Elliott then received a “very generic letter,” and were set up to speak with the physician handling the situation, and later that morning their own physical reached out to the couple as well. “Both stated that both embryos were now not viable,” Amy says. 

“From an emotional standpoint it’s been a rollercoaster ride, at first it’s like ‘this really can’t be happening to us.’ Then there’s a sense of hope. We’ve had a lot of anger about the situation. There’s so many different practices regarding the storage and the regulation — we’re very angry. 
“Then, of course, what’s coming up is trying to process the loss of what this means as a family. I am beyond grateful for my son, he’s a happy two and a half year old. But his could have been him what if he wasn’t selected. What could either embryos have been? 
We thought of them as our frozen children.” 

There may be another chance for more children, although the couple can’t be sure. 

“I still have my sperm frozen there,” Elliott says. “Obviously from a financial perspective IVF runs in the tens of thousands of dollars and there are a lot of factors that we have to weigh. We haven’t gotten that far, we’re trying to wrap our heads around it.” 

At the very least, the hospital should have had a working alarm and 24-hour surveillance in place, and a list of contacts to call if there was a freezer malfunction. 

The couple’s lawyer, Robert DiCello, says that the couple wants to see changes in the rules and regulations of storing eggs and embryos, and they want to see safeguards put in place for if and when systems fail. 

“We’ve been in contact with University Hospital and government agencies involved in this, because of the failure in San Francisco too, but the hospital is reluctant to share any info,”  DiCello tells us. “Friday we filed a request with a judge to get information as they get it because they are keeping a closed lid on this.” 

A second fertility clinic in San Francisco, now says thousands of frozen eggs and embryos were likely damaged at their facility after a liquid nitrogen failure and a temperature dip in a storage tank thawed them out.

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