Newport Beach Couple Sues Ovation Fertility For Nonviable Embryo

A Newport Beach couple is suing a local fertility center, Ovation Fertility, alleging it implanted an nonviable embryo into the woman’s uterus after it had allegedly been tainted with hydrogen peroxide during in vitro fertilization (IVF).

*Updated 6/8/24

Ovation Fertility located in the Newport Lido Medical Center has labs in 21 other cities across the country.

“Unbeknownst to Plaintiffs, Ovation wrongfully used hydrogen peroxide in an incubator into which it placed embryos, including Plaintiffs’ precious embryo,” the complaint states. “Ovation’s toxic incubator killed Plaintiffs’ embryo.”

The lawsuit was filed in Orange County Superior County in April.

The plaintiffs seek future non-economic, economic as well as punitive damages to be determined at trial.

“Embryos are extremely delicate and the IVF process is very, very precise,” fertility lawyer Dean E. Masserman told OrangeCountyLawyers.com. “When you’re culturing and incubating embryos, you have to be careful of toxins. You have to do all of these things with precision to try and replicate what would naturally happen in a woman’s body when an embryo is created.”

During IVF, eggs are extracted from a woman and fertilized in a laboratory with a man’s sperm to create an embryo, which is inserted into the mother’s uterus.

In Alabama, a judge recently ruled that embryos have rights but in California, they are considered to be property. 

“Embryos are just multi-cell entities until they’re implanted into a uterus, and until at least six weeks when you have a fetal heartbeat, they’re not human beings,” Masserman said.

In this case, plaintiffs are suing for negligence, fraud, bailment, misrepresentation, conversion, medical battery, negligent hiring and supervision of employees, and premises liability.

Ovation Fertility Allegedly Misrepresented Standards & Practices

Fraud claims include allegations that Ovation misrepresented its use of best practices, its standards, and technologies that are available to ensure the safety of the plaintiffs’ embryo.

“If the couple is young and they can produce more eggs and sperm and create more embryos, that’s one thing but if they’re older, they had cancer, or they can’t produce any more of their own eggs or their own sperm and that was their last chance to have a biological child related to them, that’s a different level of emotional distress,” Masserman said.

Because incubators protect embryos with the appropriate levels of temperature, humidity, pH balance and gases, proper cleaning is critical. But, just as in other professions, levels of employee training vary according to title and duties.

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“It may be that on this one occasion someone took the wrong bottle, it’s hard to imagine but it’s possible, and Ovation will establish policies, procedures and protocols to ensure it never happens again,” Masserman said in an interview with OrangeCountyLawyers.com. “In any profession, whether it’s law enforcement, law, medicine, or IVF clinics, nothing is a hundred percent right. There’s always a couple of errors.”

IVF labs use hydrogen peroxide to clean incubators because the liquid removes proteins, minerals and other residues that soap does not.

 As a result, cleaning at fertility centers occur frequently.

“Obviously, if you’re using hydrogen peroxide as a cleanser, you would have a hydrogen peroxide bottle clearly marked and distinct from any other bottle in the lab,” Masserman said. “What doesn’t make sense to me is how the bottles could be confused because those bottles are clearly marked.”

One potential area of discovery that Masserman identified is why the embryo was inserted into the plaintiff’s uterus if it was nonviable.

“Normally, before you implant an embryo, you’re gonna look at it under a microscope and see that it is a good embryo,” Masserman added.

Attorney  Adam Wolf of Peiffer Wolf Carr Kane Conway & Wise, LLP for the plaintiffs said “This is a tragedy for dozens of would-be parents in Orange County. Some of the victims lost all their remaining embryos. To them, this is not about lost time, money and physical pain. Ovation robbed them of the chance to have biologically related children. To make matters worse, this disaster was completely preventable”.