Husband and wife seek damages over claim of destroyed embryos at fertility clinic

A husband and wife have taken a High Court action seeking damages for nervous shock claiming their five embryos stored at a fertility clinic became contaminated and had to be destroyed.

The couple, who had opted for embryo freezing before the woman had chemotherapy for breast cancer, claim they have lost the chance and opportunity to extend their family.

Their counsel Jeremy Maher SC, instructed by Michael Boylan Litigation, told the High Court it was a very sensitive case concerning the contamination and destruction of embryos belonging to the couple which he said their side claim amounted to the alleged wrong.

The couple were told of the “devastating development that the embryos had been contaminated and would have to be destroyed” on the day before the woman started her chemotherapy.

“It was a day neither will forget. They had pinned so much hope in this process,” Mr Maher told the court.

He said the couple will say they were told the possible contamination was from another unidentified sperm sample.

The couple, who cannot be named by order of the court, have lost out on “the probability of the birth of a child by this process”, he added.

Counsel told the court expert evidence on their side will say that had contamination not taken place, the process would have resulted in a live birth. “That live birth has been lost,” Mr Maher said.

Mr Justice Mícheál P O’Higgins was told the issue in the case is “a novel matter” which has not previously come before the Irish courts.

The couple have sued Human Assisted Reproduction Ireland Ltd, with registered offices at Merrion Square, Dublin. It was in 2019 trading as Rotunda IVF at the National Fertility Centre in the Rotunda Hospital, Dublin and is now located in Swords Business Campus in north Co Dublin.

On March 12th, 2019, the couple, who were advised to take measures to protect their fertility before the chemotherapy, were told 17 eggs had been harvested, eight had matured and five had fertilised. Two days later, it is claimed, they were informed that a serious adverse event had occurred in the laboratory rendering their five embryos unusable.

It is further claimed they were informed that due to alleged “human error” their fertilised embryos had been contaminated and it would not be possible to use or freeze them. It is alleged that the couple’s embryos had to be discarded as they were deemed unsuitable for human application due to the potential risks from contamination.

The husband and wife say they suffered severe and sudden shock, stress, trauma and injury.

Human Assisted Reproduction Ireland Ltd has admitted that the fertilised eggs were subsequently observed to have become contaminated. It is further admitted that because of the contamination it was not possible for the couple to use the fertilised eggs to try to achieve pregnancy.

However, in relation to the claim by the couple to have lost the chance to extend their family, it is denied that is recoverable as a matter of law. The case before Mr Justice O’Higgins is expected to last three weeks.