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Couple sue Brigham over embryos' disposal

Hospital apologizes, says move was error

By Liz Kowalczyk
Globe Staff / May 16, 2009
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Julie Norton was 29 years old and making plans with her new husband, Michael, when she was diagnosed with advanced colon cancer. Because cancer treatment would almost certainly harm her ability to bear children, the newlyweds decided to freeze several embryos first.

Over the next eight years, there were setbacks and recoveries. Finally, this spring, the Nortons were ready to begin a family.

But on March 2, two days before the embryos were due to be implanted in a surrogate at Brigham and Women's Hospital, the Nortons received shocking news: Brigham had destroyed all 13 of the couple's embryos.

They were gone, despite a January 2006 e-mail from a director of the hospital's Embryology Laboratory to Julie Norton, saying "Please do not worry about your embryos. They will remain here until further notice from you."

This week, the Nortons filed a lawsuit against the hospital and three employees, including the director of assisted reproductive technologies and two lab managers, for negligence, breach of contract, and infliction of emotional distress. The lawsuit, filed in Norfolk Superior Court, comes amid a national debate over storage of the growing number of frozen embryos in the United States, how to ensure their safety, and if, and when, clinics should destroy them.

The Nortons declined to speak to the Globe yesterday. But their lawyer, Anthony Campo of Boston, along with the lawsuit and attached e-mails, provided details of the alleged events since Julie Norton was diagnosed with Stage III rectal/colon cancer in 2001.

A Brigham official said yesterday that the hospital would not discuss the case because it is in litigation. But the hospital released a written statement apologizing to the couple and suggesting that the hospital discarded the Nortons' embryos by mistake.

"We are deeply sorry; we informed the couple as soon as we became aware and have apologized to our patient and her husband," the statement said. "We hold ourselves responsible for not ensuring the proper care of our patient's embryos. We are improving our policies and procedures, adding an increased level of oversight to prevent this from happening again."

Campo said the Quincy couple - Julie Norton is now 37; Michael Norton is 35 - "are dealing with this as well as you could expect. They feel like they've had the rug pulled out from under them," he said.

Campo said he is uncertain how the mistake could have occurred, but expects more information once lawyers start interviewing witnesses as part of the lawsuit. The couple is asking for $5 million in damages and for improved hospital policies.

There are an estimated 500,000 embryos frozen in 400 in-vitro fertilization clinics across the United States, said Sean Tipton, spokesman for the American Society For Reproductive Medicine. "The first thing to understand is that decisions about those embryos always stay with the patient. That is across the board in this country," he said.

Even so, one issue clinics are struggling with is what to do with embryos that have been unclaimed for years. Some clinics will try to increase the annual storage fee, which usually starts around $200, to "provide an incentive to patients to make a decision," Tipton said. The society's ethics committee recommends that if a clinic is unable to contact a patient after five years, then they can consider the embryos abandoned and destroy them. Still, "many clinics are afraid to do this," Tipton said.

In the Nortons' case, however, the hospital had agreed to store the embryos indefinitely for free because she was a cancer patient, Campo said.

Tipton said this is the first case of accidental disposal he knows of that involves a cancer patient. "At some point, regardless of safeguards you place, there is a potential for human error," he said.

The hospital had been storing the embryos since October 2001, when, soon after her cancer diagnosis, Julie Norton underwent surgery at the Brigham to have 16 eggs removed. The eggs were fertilized with her husband's sperm, and 13 embryos were created. The couple intended to have them implanted in Julie Norton as soon as she was well enough. Then, in 2004, Brigham doctors determined that Norton's uterus was too damaged by cancer treatment to carry embryos to full term, and advised the couple to find a surrogate.

But in January 2006, Dr. Elizabeth Ginsburg, director of assisted reproductive technologies, sent the couple a letter, saying that the consent for storage of the embryos had expired in 2004 and that the couple must decide what to do with them by March 3, 2006, according to court documents. The couple e-mailed Kathy Jackson, a director of the Embryology Laboratory, explaining that Julie Norton had undergone cancer treatment, and that they intended to use the embryos with a surrogate within two years, once she was healthy.

"We are sick to our stomach thinking about" the possible destruction of the embryos, they wrote, according to an e-mail filed with the complaint.

Jackson replied, telling them not to worry; the embryos would be saved. "I offer you my sincere apologies that your medical status was overlooked when this letter was sent and am extremely sorry you have suffered from this oversight."

Somehow, that correction never made it to the right person. An "authorization to discard frozen tissue due to abandonment" from the Brigham, also filed with the complaint, said "Date Discarded: 8/10/06."

Liz Kowalczyk can be reached at kowalczyk@globe.com