麻豆传媒

An Ontario couple has filed notice of legal action against a Toronto fertility clinic after an alleged storage tank malfunction damaged their eggs and embryos.

In documents filed in Ontario Superior Court last week, the Mississauga, Ont., husband and wife, identified only by their initials, are seeking damages for negligence, breach of contract and breach of fiduciary duty. The notice of action seeks to commence a class-action lawsuit on behalf of the couple and any other affected individuals.

According to the court document, the couple was informed in late May that one of the cryogenic tanks owned by the ReproMed fertility clinic had malfunctioned. As a result of the malfunction, the couple鈥檚 nine embryos and 15 eggs were deemed 鈥渓ikely not viable,鈥� the document claims.

The notice of action names The Toronto Institute for Reproductive Medicine Inc., ReproMed Ltd., its medical director, Dr. Alfonso Del Valle, and U.S.-based Chart Industries Inc., as the defendants.

Chart Industries Inc. makes cryogenic equipment and the plaintiffs believe that their eggs and embryos were stored in a Chart tank at ReproMed.

In April, Chart Industries issued a recall notice for some of its cryobiological tanks over a reported 鈥渧acuum leak.鈥� The company has been named among the defendants in recent U.S. lawsuits over damaged eggs and embryos at two fertility clinics.

The Canadian class-action lawsuit will have to be certified by the court in order to proceed.

The plaintiffs, who want to remain anonymous, said they were 鈥渟hocked鈥� when they found out what happened to their reproductive materials.

鈥淢y husband and I put our trust in ReproMed to help us grow our family. When we were notified that our eggs and embryos were no longer viable, we instantly grieved the loss of the family we envisioned,鈥� one of the plaintiffs told 麻豆传媒 in a statement.

鈥淲e were shocked and frustrated that something like this could have happened. More than anything, we feel sadness for ourselves and other families that suffered the same loss.鈥�

The couple鈥檚 lawyer, Bridget Moran of the Siskinds Law Firm, told 麻豆传媒 that her clients are 鈥渉eartbroken鈥� over the loss of their embryos.

鈥淪eeking fertility treatment and going through the months of uncomfortable, risky and uncertain medical procedures is one of the biggest things a family can do and often times it can be their last resort,鈥� Moran said in an interview.

鈥淪o to find out that your eggs and embryos that you trusted were in a safe place are no longer viable -- that鈥檚 heartbreaking for these families 鈥� Our clients are heartbroken. They had dreams for a family that they are not sure they will be able to replicate.鈥�

Moran said the fertility clinic offered her clients the opportunity to have another round of IVF and egg storage for free.

鈥淚n our view that is not sufficient compensation for what happened to them,鈥� she said.

鈥淚t鈥檚 not just the financial impact that these families have suffered, for some people the genetic material they have stored at ReproMed could be their last opportunity to make the family they wanted.鈥�

The Toronto Institute for Reproductive Medicine said Monday that it first learned about the proposed class-action lawsuit from 麻豆传媒. It also acknowledged the storage tank failure.

鈥淩eproMed deeply regrets that this occurrence took place,鈥� the company said in a statement. 鈥淭he failure of the storage tank was not expected.鈥�

The clinic said it has notified its patients and its team has been 鈥渨orking tirelessly to investigate and address their concerns.鈥�

鈥楻eal tragedy for everybody involved鈥�

One fertility expert said his heart 鈥渞eally goes out to the families affected by this situation.鈥�

鈥淚t鈥檚 a real tragedy for everybody involved,鈥� according to the medical director of a fertility clinic in Toronto who is not involved in the legal case.

The science of storing eggs, embryos and sperm is based on mechanical processes that are designed with a series of alarms, but there is always a small chance the machines will malfunction, he said.

鈥淣othing is ever 100 per cent fail-safe. They are prone to failure. Any organization or community simply needs to do our best to have checks and balances to 鈥� minimize the chances of this ever occurring,鈥� he said, adding that human oversight is essential.

Two U.S. clinics, one in San Francisco and the other in Cleveland, Ohio, also reported accidental human embryo destruction in March, linked to storage tank malfunctions.

There are estimates that more than 4,000 eggs and embryos were lost in the two locations. In the U.S., couples are charged about $600 a year to store their reproductive material.

The U.S. cases served as a heads-up to Canadian clinics, he said.

鈥淓ver since those stories came out in the U.S. there was an opportunity for organizations to look internally to make sure that we are not just relying on bells and whistles, but also to make sure there are 鈥� 24-hour alarms systems, daily checks, external reviewers to make sure we are accountable to the standards we like to be held to,鈥� he said.

On its website, ReproMed boasts 鈥渉igh pregnancy success rates and international renowned research achievements.鈥�

The clinic says it serves patients from across Canada, as well as those from other parts of North America, South America and Europe.

A spokesperson for Chart Industries told 麻豆传媒 that the company does not comment on any pending litigation.

There are no mandatory regulatory agencies for fertility clinics, but many of them voluntarily choose to use Accreditation Canada.

With a report from 麻豆传媒 medical affairs specialist Avis Favaro and producer Elizabeth St. Philip