Melissa has the BRCA-1 mutation, which increases her risk of developing breast and ovarian cancer. Jason has a mutation in the CDH1 gene, making him highly susceptible to developing hereditary diffuse gastric cancer.
When they decided to try for children, the Whittier, Calif., couple opted for in vitro fertilization at HRC Fertility in hopes that their children could avoid the genetic mutations that have affected their families and themselves. But according to a new lawsuit filed Wednesday in Los Angeles County Superior Court, the family had a medical nightmare.
The couple’s one-year-old son has the same rare CDH1 genetic mutation as Jason, according to the lawsuit.
The Diazes allege in their lawsuit that the fertility clinic knowingly implanted an embryo with the CDH1 gene mutation, although the Diazes had specifically worked with the clinic to ensure they could have children without that particular mutation and then tried to cover up their mistake. .
“Never in a million years did I think this could happen,” Melissa, 31, said at a press conference announcing the lawsuit. “We are heartbroken at what our beloved son will have to go through because of HRC’s conduct and lies.”
In 2018, the same year the two got married, Jason, then 32, was diagnosed with hereditary diffuse gastric cancer. When the chemotherapy didn’t work, he underwent a gastrectomy – a complete removal of the stomach, the lawsuit said.
“Life after stomach removal surgery is extremely difficult,” Jason, now 37, told the news conference, citing eating and digestive issues that affect his daily life.
He also has two aunts who died of gastric cancer in their forties. said the lawsuit.
The Diaz knew they didn’t want their children to face the same challenges. According to the lawsuit, the couple researched their IVF options before choosing HRC Fertility and Dr. Bradford Kolb, who is also a defendant in the lawsuit.
Opened in 1988 and owned by Chinese corporation Jinxin Fertility, HRC Fertility operates nine locations in Southern California. HRC Fertility’s website boasted that Kolb “is known internationally for his expertise in complex reproductive issues” and has “patients who travel from all over the world to HRC Fertility Pasadena to see him,” the lawsuit said.
HRC Fertility and Kolb were also processed in 2022 by a same-sex couple who claimed a female embryo was mistakenly implanted in their surrogate when they stated they wanted a male embryo.
During their first meeting with Kolb in December 2018, the couple told the doctor that they intended to avoid passing on the genetic mutations that put them at greater risk of developing cancer, according to court documents.
Melissa underwent two separate egg retrieval procedures, of which HRC Fertility’s embryology lab created five embryos, according to the process. In August 2020, a clear embryo with neither the CDH1 mutation nor the BRCA-1 gene was implanted, but Melissa miscarried.
None of the remaining embryos were mutation-free, according to the lawsuit. They all carried the CDH1 or BRCA-1 gene, but the Diaz chose to implant a male embryo with the BRCA-1 gene in their next attempt because a boy was less likely to develop breast cancer, the lawsuit said.
In September 2021, the Diaz welcomed a baby boy and the families threw a huge party, believing they had “broken the curse” that plagued them, the lawsuit said. But their joy was short-lived.
The couple decided to try for a second baby in July 2022, before Melissa had to have her ovaries removed as a precaution due to her high cancer risk, the lawsuit said.
When she asked the new IVF coordinator for a copy of her embryo report, the couple discovered the embryo they had implanted, now their “happy, jolly boy” carried stomach and breast cancer genetic mutations, the lawsuit alleged. The embryo report even contained handwritten notes that said the transplant carried the CDH1 gene mutation, according to the lawsuit.
According to the lawsuit, Melissa emailed the new coordinator, writing, “The reason we did IVF was to eliminate the gastric cancer mutation, if not both gene mutations. We got so stressed out thinking about the that our child will go through because of this genetic mutation. Can you please verify that this is the correct report for our embryos?”
The coordinator did not respond for several days, the suit alleged. Eventually, after several emails and phone calls, someone from HRC Fertility called Melissa and admitted that HRC had made a serious mistake, the court documents say. The HRC Fertility representative asked Melissa and Jason to come to the HRC Fertility office for “a meeting,” according to the lawsuit.
In a statement, an HRC spokeswoman said the Diaz family conducted genetic testing and fertility counseling outside of HRC and with third parties. The spokeswoman said the fertility center supports the professionalism and experience of its medical staff.
“They wanted a male embryo transfer, which we carried out in accordance with the explicit wishes of the family and in accordance with the highest level of care,” the spokeswoman said.
Melissa said that when HRC finally sent back her complete medical records, the handwritten notes were gone: “We asked three times for an explanation,” she said. “When the HRC finally sent the records, they were deleted. It was shocking that my own doctor altered my records, showing that they knew they had done something wrong.”
The baby now has more than an 80% chance of developing stomach cancer, according to the lawsuit.
Jason said he wouldn’t want anyone to suffer the way he and his family did with cancer, but he loved his son more than anything and would be there for him through his journey.
“I know that somehow we’re going to get through this with strength and grace,” he said. “But there has to be justice.”
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