Couple sues IVF clinic HRC Fertility after son is born with rare cancer gene

A California couple is suing a high-end fertility clinic after their son was born with the devastating rare stomach cancer gene they had hoped to avert.

In a lawsuit filed in Los Angeles County Superior Court, Jason and Melissa Diaz accuse HRC Fertility of implanting, without their knowledge, an embryo carrying the CDH1 mutation, the Los Angeles Times reported.

The couple’s son, born in September 2021, now has an 80% chance of developing hereditary diffuse gastric cancer and will need a preventative gastrectomy, or stomach removal, the suit claims.

In the documents, the Whitter, Calif., couple say they decided to start a family through IVF with genetic screening because both carry risky genetic malformations.

Melissa carries BRCA-1, which presents a higher risk of breast and ovarian cancer, while Jason has the CDH1 mutation linked to hereditary diffuse gastric cancer, CBS reported.

After losing two aunts to the disease, Jason, then 32, was diagnosed with gastric cancer in 2018, the same year he and Melissa were married, the outlet said. When chemotherapy was unsuccessful, he underwent a gastrectomy that left him with a lifetime of food and digestive complications.

Eager to spare their future children from Jason’s ordeal, the couple soon sought out HRC Fertility in Pasadena. An affiliate of Keck Medicine of University of Southern California, Los Angeles, HRC’s website boasts its “unparalleled expertise” and “personalized care” for family planning concerns and treatments.

In December 2018, CBS reported, the Diaz couple met with Dr. Bradford Kolb, a reproductive endocrinologist, noted on the HRC website for “helping to develop and implementing cutting edge technologies in the genetic screening of embryos.”

“From the beginning, [the couple] expressly advised HRC Fertility, its employees, and Dr. Kolb that they sought IVF with preimplantation genetic testing to avoid having a child with Jason’s CDH1 mutation for hereditary diffuse gastric cancer,” the suit states, according to The Daily Beast.

After Melissa went through two egg-retrieval procedures, the suit claims, the couple had five viable embryos. A clear embryo with no mutations was implanted in August 2020, but the pregnancy ended in a miscarriage.

According to the lawsuit, all of the remaining embryos carried either BRCA-1 or CHD1. and Jason and Melissa ultimately decided to implant a male embryo with the BRCA-1 mutation, assuming it would be less likely for a male to develop breast cancer.

The embryo was implanted in January 2022, and Melissa gave birth to their son that September, the suit says.

Jason’s family threw a party for the couple to celebrate the new addition and “eliminating the CDH1 mutation from the Diaz family line,” The Daily Beast said, quoting the lawsuit.

“[They thought they had] broken the curse that had doomed other family members to cancer and early death,” the complaint states.

Jason and Melissa were so gratified by the results of HRC and Dr. Kolb’s efforts that they decided to try for a second child in July 2022. They wanted to expand their family before Melissa had her ovaries removed to decrease her own cancer risk, CBS said.

But when Melissa asked the IVF coordinator for the embryo report for their son, now a “happy, joyful boy,” she was shocked to find handwritten notes indicating the child carried both the breast and stomach cancer mutations, the suit alleges.

After contacting the clinic to double-check the results, the lawsuit claims HRC eventually called and admitted there was an error in the process. 

Melissa also contends that when she finally received her full medical records, the clinic’s staff had whited out evidence of their error.

Now, the couple believe Kolb did not transfer a male embryo without the CDH1 gene because that mutation-free embryo did not exist, and that testing results were misrepresented to them. 

In a statement to The Daily Beast, HRC Fertility said the couple got genetic testing outside of the facility, and that the clinic stood by the actions of its medical staff.

“They wished to have a male embryo transferred, which we carried out according to the family’s explicit wishes and in accordance with the highest level of care,” the spokesperson told the outlet.

According to the Diazes lawsuit, their son will now require a preventative stomach removal to avoid cancer himself. They are hoping to delay the procedure until he is finished developing, as a premature gastrectomy could cause physical and cognitive issues, The Daily Beast said.

They are seeking financial compensation for emotional anguish, as well as future lost wages and medical care.

At a virtual press conference on Wednesday, Jason and Melissa became emotional discussing the ramifications of HRC’s alleged actions on their son’s future.

“We went through the difficult and expensive process of IVF so we could spare our children what Jason has had to endure,” Melissa said.

 “[Our son is] just such a happy baby, and to know the hurt in front of him — that he has to face for something we tried to prevent — it crushes me.”

“I wouldn’t want anyone on earth to experience this type of pain, and now I will be forced to watch my own son — my own flesh and blood — go through this,” Jason added.

“Every day my heart is hurting for my baby boy knowing the pain and challenges he has ahead of him.”

The Diazes are represented in the lawsuit by Adam Wolf, who is well-known for handling IVF cases. 

He also represents a same-sex couple that sued HRC Fertility and Dr. Kolb last year, alleging that their gestational carrier was implanted with a female embryo when they specifically requested a male embryo.

The couple, Albert and Anthony Saniger, are taking HRC and Kolb to trial in Nov. 2023, the Los Angeles Times reported.

In a statement to the outlet, Wolf called the Diaz case “yet another disaster in HRC’s history of misusing patients’ genetic material and committing other grave fertility misconduct.”