Manhattan fertility clinic faces multiple lawsuits over lost eggs

Two women are seeking answers about what happened to their eggs when a clinic called Advanced Fertility Services transferred its in vitro fertilization center and laboratory to a separate company, Manhattan Fertility Services, in 2016.

An Upper East Side fertility clinic is facing a pair of lawsuits from patients who said they paid thousands of dollars to freeze their eggs, only to find that when they were ready to become pregnant years later, the eggs were lost or damaged.

The women who filed the cases are seeking answers about what happened to their eggs when a clinic called Advanced Fertility Services transferred its in vitro fertilization (IVF) center and laboratory to a separate company, Manhattan Fertility Services, in 2016. The lawsuits also raise questions about how common fertility clinic errors are, and whether there’s a need for greater oversight to avoid issues related to storage and recordkeeping.

Dr. Hugh Melnick, who runs Advanced Fertility Services, told Gothamist he was not responsible for anything that happened after he sold the company’s IVF services. Manhattan Fertility Services did not respond to a request for comment.

One patient, Paula Cervoni, filed a lawsuit against Advanced Fertility Services, Manhattan Fertility Services and other defendants in May, alleging that the 11 eggs she paid more than $20,000 to retrieve and store over the course of 15 years went missing entirely. The New York Post reported on the lawsuit at the time.

Advanced Fertility Services and Manhattan Fertility Services are now facing another lawsuit, filed in late June by Larisa Lev-Ary, 44. She said most — but not all — of the eggs she froze in 2014 were there when she went looking for them so she could get pregnant in July 2021. But she alleges that they were improperly stored, rendering them unusable. She is suing for negligence and medical malpractice.

Lev-Ary, a New Jersey resident who owns a spa in Manhattan, said she first decided to freeze her eggs in her mid-30s. She was single and knew she wanted to have children, regardless of whether she found a partner. “I’m coming from a big family,” said Lev-Ary, the second of four siblings. “This was my dream, to have a big family.”

Lev-Ary said she chose Advanced Fertility Services at the recommendation of a friend who had successfully gotten pregnant with the clinic’s assistance. She underwent the process of having her eggs retrieved in 2014 and said 17 were frozen at the time.

At 38, Lev-Ary was able to get pregnant and have a son using a different method known as intrauterine insemination, without using any of her frozen eggs. But when she attempted to use that method again in the following years, it was unsuccessful.

Two summers ago, in the hopes of growing her family and giving her now 5-year-old son a sibling, she decided to try again with one of her younger frozen eggs, which she had by then spent $11,200 to harvest and store with Advanced Fertility Services and then Manhattan Fertility Services, according to the lawsuit. She decided to transfer the eggs to a different clinic, Reproductive Medicine Associates New Jersey, to undergo the IVF process.

When she went to check on her frozen eggs in July 2021, Lev-Ary found there were now 16, rather than the 17 she had been initially told — and two were unlabeled.

The combination made her nervous that the presented eggs might not be hers, and if they weren’t, she wondered if someone else get her eggs instead. Lev-Ary said the second possibility is a lingering concern.

“I might have kids out there and I'm not part of their life,” she said.

She was still hopeful she could have another child, but when the 16 eggs were thawed, Lev-Ary was devastated to find that none of them had survived.

“I have never heard of a cohort of this many frozen eggs revealing themselves to be degenerated during the warming process,” Dr. Kathleen Hong, the associate laboratory director at Reproductive Medicine Associates New Jersey, wrote in an affidavit attached to Lev-Ary’s lawsuit.

Lev-Ary said she is saddened by the prospect that she might not have another biological child. But she said she also wants there to be more regulation and oversight of fertility clinics in general. “It just scares me to know that there are other women that are out there who trust this place,” Lev-Ary said.

In New York, fertility clinics “that perform certain activities, such as artificial insemination,” are regulated as tissue banks and “allegations of non-compliance with tissue banking requirements are investigated,” according to Danielle De Souza, a spokesperson for the state Department of Health.

De Souza would not comment on whether the health department is investigating the companies mentioned in these lawsuits.

How common are fertility clinic errors? It’s hard to tell.

In recent years, certain high-profile cases of fertility clinic errors and mix-ups have captured the national spotlight. For instance in 2019, a Korean American couple in Flushing, Queens gave birth to twin babies, neither of whom was Asian. Genetic testing revealed that the babies weren’t related to the couple or even to each other.

Not all mistakes are that obvious, and fertility clinics are generally not required to report major errors to a regulatory body, making it difficult to tell how often they occur, said Dov Fox, a professor of health law and bioethics at the University of San Diego School of Law, who studies fertility lawsuits.

Licensed tissue banks “are required to report certain errors and incidents” to the state Health Department, according to De Souza, the agency spokesperson. But she did not elaborate on what types of incidents must be reported within the context of fertility clinics.

A recent study, co-authored by Fox, discovered 133 lawsuits filed over lost or damaged embryos between 2009 and 2019 in the U.S. Most were related to massive freezer tank failures in Ohio and California that resulted in the loss of thousands of eggs and embryos.

But Fox said he doesn’t think lawsuits are a good measure of how frequently errors occur.

“There are so many reasons why people don't sue, even if they've got really good claims,” Fox said. He added that the cases that are filed “by and large fail.”

Some judges, Fox said, consider the desire to have a biological child through IVF something of a “luxury,” making them less sympathetic when things go wrong. The monthslong process — from egg retrieval to implantation — can cost tens of thousands of dollars, and is often not covered by health insurance.

New York requires large group insurance plans to cover up to three cycles of IVF – along with the associated egg or embryo storage – for those who are diagnosed with infertility, although large employers often have health plans that are not subject to these state regulations.

Fox said he wasn’t aware of people buying other types of policies — such as accidental insurance — to cover the risk of something going wrong during storage or other parts of the IVF process.

He added that, based on his research, there seemed to be room to update regulatory oversight and best practices in the field. “When it comes to fertility clinics, some facilities still opt for pen and paper,” rather than more reliable labeling and record-keeping methods, he said.

One New York startup called TMRW is seeking to modernize the freezing and storage process at fertility clinics by making it possible to electronically track and trace frozen eggs and embryos and link them to patients’ electronic medical records.

As it stands, the process of labeling and keeping track of these fertility materials is often done manually, creating the potential for errors if a label gets rubbed off or a specimen isn’t put back in exactly the same place, said Louis Villaba, CEO of TMRW.

He added that the recordkeeping has gotten more complicated as the volume of specimens fertility clinics are responsible for has grown over the years. TMRW also has technology that makes it possible to tell ahead of time if the temperature in a tank might go too high, rather than getting alerted after the fact.

The company, founded in 2018, is now working with about 50 fertility clinics across the country, some of which operate networks of multiple centers, Villaba said.

This story was updated to clarify that Larisa Lev-Ary lives in New Jersey but owns a spa in New York.