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US couple files malpractice lawsuit against doctor for embryo mix up

Scott Gottlieb , New York

A white couple from New York has filed a malpractice lawsuit against a doctor they allege was responsible for an embryo mix up during in vitro fertilisation that resulted in the woman giving birth to a black baby when she delivered twins.

The couple, who gave birth to their own white baby at the same time, allege that their doctor, Lillian Nash of New York, was wilfully negligent when she mistakenly implanted the embryo of a black couple from Teaneck, New Jersey, into the white mother. In court papers filed in New York, the couple also charged that Dr Nash violated confidentiality rules when she divulged their names to the black couple. New York State Health Department officials have also determined that Dr Nash was not licensed to perform in vitro fertilisations in her office.

The mix up occurred in April last year, when both women were in Dr Nash's New York office for embryo implantation after in vitro fertilisation of their eggs. Dr Nash told the black woman that her remaining embryos would be frozen and stored for possible future use, but several were erroneously implanted in the other patient involved in the case. Court papers said that Dr Nash informed both couples of the mistake months before the white couple gave birth. The white couple said that they had not known the identity of the black couple until they filed a lawsuit seeking custody of the black baby boy.

The case has touched on volatile issues of genetics and morality at a time when fertility treatments are becoming more commonplace. Dr Glenn McGee, professor of bioethics at the University of Pennsylvania Health System, said that as couples begin to sue reproductive physicians for malpractice, juries will make it expensive to be incompetent. "Labs have to be certified that they are clean and that they comply with hazardous waste requirements, but there's no driver's license for in vitro fertilisation," he said.

The white couple have said they will raise their biological child and that if DNA tests show that the other couple are the black baby's genetic parents, they will relinquish custody of the child to them. Lawyers for both couples have said that they plan to work out a visitation agreement so the boys will grow up knowing each other. "They are having a rough time," said David Cohen, an attorney representing the white couple in the case.