Couple sues fertility clinic after son born with cancer gene they sought to avoid

A California couple has filed a lawsuit against a fertility clinic for emotional anguish, future lost wages, and medical care after they realized their son was born with a hereditary cancer gene they thought they were avoiding.

As reported by the New York Post, Jason and Melissa Diaz opted to plan a family with in vitro fertilization (IVF) with genetic screening to increase their chances of a healthy child, as two of Jason's aunts had died from hereditary diffuse gastric cancer (HDGC), a disease that the upset father fought himself and had to undergo a gastrectomy (stomach removal) for. Melissa also carries the dangerous BRCA-1, a gene signifying an increased risk of breast and ovarian cancer.



In their lawsuit, filed with the Los Angeles County Superior Court, the Diazes accused Pasadena's HRC Fertility of implanting an embryo in Melissa that was carrying the CDH1 mutation, the gene that carries an 80 percent chance of developing HDGC, without their knowledge.

According to the lawsuit, the Diazes' son, born September 2021, will need to undergo a preventative gastrectomy in order to avoid more suffering. The stomach removal procedure would help him avoid cancer, but comes with a lifetime of digestive complications.

"Every day, my heart is hurting for my baby boy, knowing the pain and challenges he has ahead of him," said the boy's father to the Los Angeles Times.

As reported by CBS, the couple first met with HRC reproductive endocrinologist Dr. Bradford Kolb in December 2018, who is noted on the clinic's 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 reads.

The suit claims that out of the five viable embryos retrieved by the clinic, the one with zero mutations was lost in a miscarriage. The next best choice that the Diazes felt they had was to implant a male embryo with the breast cancer gene rather than one with the stomach cancer gene.

When the child was born, the family threw a party to celebrate the new life and for "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 suit states.

However, when Melissa requested the embryo report for her son the next year before trying for another child, she discovered "handwritten notes indicating the child carried both the breast and stomach cancer mutations," the Post reported. 

After bringing this shocking discovery to the attention of HRC Fertility, the lawsuit claims that the clinic eventually called and admitted that there was a mistake. 

The disgruntled mother also claims that the evidence of the error was whited out when she received her full medical records from the clinic.

The Diazes now believe that the second mutation-free embryo never existed, and that the results of the genetic screening were misrepresented to them before the implantation of the embryo.

However, an HRC Fertility representative told the Daily Beast that the couple received their genetic testing from a third party, and that their clinic is standing by its actions. 

"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 said.

"We went through the difficult and expensive process of IVF so we could spare our children what Jason has had to endure," Melissa said during a virtual press conference on Wednesday. 

 "[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."

Jason said he "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."

The couple's lawyer, Adam Wolf, said that this is "yet another disaster in HRC's history of misusing patients’ genetic material and committing other grave fertility misconduct."

Wolf is also representing a gay couple, Albert and Anthony Saniger, who are taking HRC and Kolb to trial in November for allegedly implanting a female embryo in their gestational surrogate when they requested a male, the Times reported.