Couple sue fertility clinic over contamination of embryos that had to be destroyed as a result

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, he said, were told the day before the woman started her chemotherapy treatment of the “devastating development that the embryos had been contaminated and would have to be destroyed”. 

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

He said the husband and wife 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, counsel said, have lost the probability of the birth of a child by this process.  Counsel told the court expert evidence on their side will say that if the contamination had 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.

Case background

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

On March 12, 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 embryos had been contaminated and it would not be possible to use or freeze the fertilised embryos obtained.

It is maintained 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 fertilized eggs to try and 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 and continues on Friday.