In the past few weeks, multiple lawsuits have been filed regarding the epic embryo mix-up scandal. That scandal, in case you hadn’t heard, involves three couples and a fertility clinic in Los Angeles called CHA Fertility Center (“CHA”). Last week, I wrote about the federal complaint filed by a New York couple — anonymously identified as “A.P.” and “Y.Z.” The complaint describes how A.P. became pregnant with twins as the result of two embryos transferred to her by CHA. A.P. and her spouse believed A.P. was carrying her and her spouse’s own genetic children. When an ultrasound revealed that the twins were both boys — contradicting the embryo testing results prior to transfer that both embryos were female — the couple was concerned. However, CHA reassured them that ultrasound results are often inaccurate, and that they were definitely having two girls. Okay, well that’s that.
Oh wait. When the babies were born, not only were both babies male, but they were of a different race than A.P. and her spouse. To make matters even more complex, not only were the twins not related to the woman who gave birth to them, they were not even genetically related to each other!
Cut back to California. Last week, in a public statement, we learned another side of the story. Anni and Ashot Manukyan held a press conference to answer questions about their roles as victims of CHA and the egregious mix-up. They, too, were filing a lawsuit against CHA. The Manukyans described how they hoped for a child, and entrusted CHA with their embryos. Unfortunately, a successful pregnancy did not result from the embryo transfers that they underwent at CHA. One of such transfers occurred on August 20, 2018 — the same day, and same location as the embryo transfer with the New York couple. Now, it’s unclear whether Anni Manukyan might have had someone else’s embryo transferred to her! But that seems likely.
Several month later, in April 2019, CHA staff asked the Manukyans to come into the clinic for some “routine quality control” testing, and to have a cheek swab DNA test completed. Why? Oh, no reason. Except we now know that the testing was anything but routine. Instead, the clinic was surreptitiously working to determine who were the genetic parents of the twins born to the New York couple. The Manukyans were a match! The couple was soon informed — in person, with a mental health professional present — that they (surprise!) had a genetic child recently born to another woman in New York. Congratulations, right? Well, talk about shocking news.
Now We Get To The Positive Part
So this story seems pretty traumatic all around so far. But I had a chance to speak with New York Attorney Eric Wrubel for a different, more positive, perspective. (Wrubel has previously been a guest on the podcast I co-host, I Want To Put A Baby In You, for his landmark family law cases in New York State.) During the Manukyans’ press conference, Anni referenced Wrubel and his work representing her and her husband in the process of obtaining legal parental recognition of their surprise son.
When I spoke to Wrubel, his focus was not on the clinic’s actions or inactions. Instead, he was proud to report that New York law has developed to such an extent as to fully understand the legal implications of assisted reproductive technology, what had occurred, and to properly recognize the legal parents of the child. While the Manukyans were not legally recognized as the parents of their son until he was almost six weeks old, that is frankly lightning speed when it comes to the law’s usual pace. Wrubel described how New York law has evolved to recognize that families don’t always come in the traditional configuration — but families are formed in many different ways, and technology aids many families. Wrubel further described the lengths he and his clients went to in order to finalize the unification process in a manner that prioritized the well-being of the children. This included implementing a transition plan designed by a mental health professional. It is good to hear Wrubel’s report that, among the mess, professionals were there to help the victims and focus on the well-being of the children.
Perspective
By contrast, a similar situation previously occurred with a very different outcome. In Italy, in December 2013 (not that long ago!) two women — with similar names — underwent embryo transfer procedures on the same day at the same clinic. “Woman 1” didn’t become pregnant, but “Woman 2” became pregnant with twins. During the pregnancy, it was discovered that Woman 1 and her spouse were the genetic parents of the twins carried by Woman 2. Woman 2 gave birth to the twins and fought to keep the babies. Under Italian law, surrogacy is illegal, and a woman who gives birth to a child is the legal parent. As a consequence, the Italian judge ruled against Woman 1 and her spouse, and declared the birthing party and her spouse as the legal parents of the children. While issues of genetics and parenthood are complicated, most of us can likely agree that that was not the just outcome — resulting in Woman 1 and her spouse as genetic donors against their wishes and their genetic child being raise by another couple.
So at least that didn’t happen here. It is good to see a little ray of hope, that some elements — correcting the legal parental presumptions — were handled professionally and expeditiously. Thanks to Wrubel and New York law, a terrible situation was not made even worse.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.