Jason and Melissa Diaz had hoped to protect their children from the deadly cancer genes they both inherited.
Melissa has the BRCA-1 mutation, which increases her risk of developing breast and ovarian cancer. Jason has a CDH1 gene mutation that makes him very susceptible to developing hereditary diffuse gastric cancer.
When they decided to have children, the Whittier, California couple chose to have in vitro fertilization at HRC Fertility in hopes their children could avoid the genetic mutations that had affected their families and themselves. But according to a new lawsuit filed Wednesday in Los Angeles County Superior Court, the family got a medical nightmare instead.
According to the lawsuit, the couple’s one-year-old son shares the same rare CDH1 genetic mutation as Jason.
The Diazes allege in their lawsuit that the fertility clinic knowingly implanted an embryo with the CDH1 gene mutation, even though the Diazes specifically worked with the clinic to ensure they could have children without that specific mutation and then attempted to correct their mistake to cover up.
“Never in a million years did I think something like this could happen,” Melissa, 31, said at a news conference announcing the lawsuit. “We are heartbroken by what our beloved son is going through because of HRC’s behavior and lies.”
In 2018, the same year the two 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 says.
“Life after gastric removal surgery is extremely difficult,” Jason, now 37, said at the press conference, citing nutritional and digestive issues that affect his daily life.
He also has two aunts who died of stomach cancer in their forties. said the lawsuit.
The Diazes knew they didn’t want their children to face the same challenges. According to the lawsuit, the couple researched their IVF options before settling on HRC Fertility and Dr. Bradford Kolb, who is also a defendant in the lawsuit, ruled.
HRC Fertility opened in 1988 and is owned by Chinese company Jinxin Fertility. It operates nine locations throughout Southern California. HRC Fertility’s website boasted that Kolb is “known internationally for his expertise in complex reproductive matters” and has “patients who travel to HRC Fertility Pasadena from all over the world to see him,” the lawsuit said.
HRC Fertility and Kolb were there too sued in 2022 by a same-sex couple who claimed a female embryo was mistakenly implanted in their surrogate, despite saying they wanted a male embryo.
When they first met Kolb in December 2018, the couple told the doctor they wanted to avoid passing on the genetic mutations that put them at higher risk of cancer, court documents said.
Melissa underwent two separate egg retrieval procedures from which HRC Fertility’s embryology laboratory created five embryos, according to the lawsuit. In August 2020, a lucid embryo without the CDH1 mutation or the BRCA-1 gene was implanted, but Melissa miscarried.
According to the lawsuit, none of the remaining embryos were mutation-free. They all carried either the CDH1 or BRCA-1 gene, but the Diazes decided on their next attempt to implant a male embryo with the BRCA-1 gene because it was less likely that a boy would develop breast cancer , according to the lawsuit.
In September 2021, the Diazes welcomed a baby boy, and the families threw a huge party because they believed they “broke the curse” that had plagued them, the lawsuit says. But their joy was short-lived.
The couple decided to have a second baby in July 2022 before Melissa had to have her ovaries removed as a precaution because of her high risk of cancer, 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 “lucky happy boy” carried both the stomach and breast cancer genetic mutations, the lawsuit claimed. According to the lawsuit, the embryo report even included handwritten notes stating that the transplant carried the mutation in the CDH1 gene.
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 genetic mutations. Can you please double check that this is the correct report.” for our embryos?”
The coordinator did not respond for several days, the lawsuit claimed. Eventually, after numerous emails and phone calls, someone from HRC Fertility called Melissa and admitted that HRC had made a grave mistake, court documents say. The HRC Fertility rep asked Melissa and Jason to come to HRC Fertility’s office to “get together,” according to the lawsuit.
In a statement, a spokeswoman for HRC said the Diaz family conducted genetic testing and counseling outside HRC’s fertility department and with an outside party. The spokeswoman said the fertility center stands by the professionalism and expertise of its medical staff.
“They requested the transfer of a male embryo, which we carried out at the express request of the family and with the utmost care,” said the spokeswoman.
Melissa said when HRC finally sent back her full medical records, the handwritten notes were gone: “We asked for an explanation three times,” she said. “When HRC finally sent the records, they were white. It was shocking that my own medical provider had altered my records to show they knew they were doing something wrong.”
According to the suit, the little boy now has a more than 80% chance of developing stomach cancer.
Jason said he wouldn’t want anyone to have cancer the way he and his family did, but he loved his son dearly and would be there for him throughout his journey.
“I know somehow we will get through this with strength and grace,” he said. “But there must be justice.”