In 2009, C.H. (Husband) and P.H. (Wife), who were married at the time, sought treatment from Respondents for IVF and an embryo transplant into a surrogate, whereby Husband and Wife would be the biological parents of the child. Husband and Wife entered into a surrogacy agreement with S.S. (Surrogate), who agreed to give birth to their baby.

On October 23, 2009, Wife delivered a semen sample purportedly belonging to Husband to St. Luke’s. In November of 2009, and again in February of 2010, Dr. Silber fertilized three eggs from Wife with the semen sample she had provided. However, the semen sample Dr. Silber used to fertilize the eggs belonged to Wife’s paramour, rather than Husband.

Dr. Silber met with Husband and Wife on November 6, 2009 and February 2, 2010, and with Husband, Wife, and Surrogate on March 11, 2010. During these meetings, Dr. Silber explained that he created three embryos in November of 2009 and an additional three embryos in February of 2010 utilizing the previously frozen sperm Wife provided in
October of 2009. That same day, Husband and Wife made clear their desire to transfer the February 2010 embryos into Surrogate at the first opportunity.

Appellants alleged that sometime in March of 2010, Husband provided his own semen sample at the request of Respondents. Appellants claimed that Dr. Silber deemed Husband’s March 2010 sample unusable for fertilization due to low motility after testing it at his St. Luke’s laboratory, but Dr. Silber never informed Husband. Husband further disputed ever being informed of his motility test result despite Wife’s statements that St. Luke’s called her to discuss his March 2010 result.

In July of 2010, Dr. Silber transferred a fertilized embryo he froze in February of 2010 into Surrogate, who later gave birth to a baby boy.

On October 1, 2019, Husband and Surrogate filed a medical malpractice action against Dr. Silber and St. Luke’s. Husband and Surrogate claimed that in 2018, they became aware of the test result that deemed Husband’s sperm as having low motility and unusable for fertilization. Thus, they alleged that Respondents were negligent in providing IVF treatment using sperm that was not Husband’s between 2009 and 2010.

The Missouri Court of Appeals Eastern District held in its opinion filed on September 26, 2023: “even if Appellants’ suit occurred within the allowable statutory period in Section 516.105.1.(2), Husband and Surrogate cannot prove that Respondents’ failure to inform Husband of his motility test result was the proximate cause and the cause-in-fact of
their damages that stem from being unaware that the genetic material used for the IVF process did not belong to Husband. Husband had multiple opportunities to realize that the genetic material used to create the embryo transferred to Surrogate could not have been Husband’s, both because it predated the lone sample Husband claims he provided in March of 2010, and because it was delivered by Wife rather than collected from Husband at a medical facility. Surrogate’s claimed damages are tied in Appellants’ petition and in their argument on appeal to Husband’s knowledge regarding the sperm samples at issue, thus Surrogate’s claimed damages are also negated by the undisputed facts that Husband had reason to know in 2010 that the sperm Dr. Silber used was not Husband’s.”

“Because an element of Appellants’ prima facie case is that Respondents’ failure to inform Husband of his test result caused them damages, and Respondents established uncontroverted material facts affirmatively negating the damages element of Appellants’ claim, Respondents are entitled to judgment as a matter of law.”

Source C.H. and S.S. v. Infertility Center of Saint Louis, No. ED111405.

If you or a family member suffered harm as a result of fertility treatments in Missouri or elsewhere in the United States, you should promptly find a Missouri medical malpractice attorney or a medical malpractice attorney in your U.S. state who may investigate your fertility malpractice claim for you and represent you or your family member in a fertility medical malpractice case, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to find IVF medical malpractice attorneys in your state who may assist you.

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