Couple sues Assuta Hospital for $9.2 million over IVF paternity mix-up
Under Health Ministry censure, hospital faces demand for damages; lawyer for unnamed pair says they won’t tell anyone, not even their kids, that the dad isn’t their genetic parent
Renee Ghert-Zand is the health reporter and a feature writer for The Times of Israel.
A couple who underwent fertility treatment at Assuta Medical Center in Tel Aviv is suing the hospital for NIS 34 million ($9.2 million) after genetic tests revealed that at least one of their two children is not biologically related to the father. Since the second child was conceived in the same batch of in-vitro fertilization embryos, it is almost certain that it, too, is not genetically linked to the father.
The medical malpractice suit is also being brought against Maccabi Healthcare Services, which is Assuta’s parent company, and the Israeli government, which is responsible for supervising medical facilities through the Health Ministry.
The incident involving the couple was one of a series of disturbing errors that prompted a Health Ministry hearing in July, after which it slapped a set of restrictions on the IVF department of Assuta’s hospital in Tel Aviv’s Ramat HaHayal neighborhood. In addition to committing serious mistakes, the medical center was accused of trying to cover them up and not reporting them to authorities promptly.
The ministry has barred the hospital’s fertility clinic from accepting new patients. It also ordered Assuta Ramat HaHayal to limit its IVF activity moving forward. There will be no more than 25 procedures (egg retrievals and embryo transfers combined) allowed per workday, which will end at 11 p.m.
“This will continue until further notice to ensure that the scope of the activity corresponds to the required standard and the unit acts in a way that does not endanger or damage public health, or patients’ rights,” said a statement issued by a committee appointed to look into the matter.
The Health Ministry also instructed the hospital to immediately search for and appoint an independent senior adviser to lead efforts to improve the organizational culture around treatment safety.
The couple bringing the lawsuit, both in their 30s, failed to conceive naturally and sought medical help. They discovered that the husband had problems with his sperm and a surgical procedure was recommended.
In 2018, the couple became patients at Assuta, which handles the largest number of IVF treatments in the country. The wife underwent egg retrieval and the husband underwent the surgery.
According to the couple’s attorney, Gilad Ginzburg, as the husband was still in the recovery room after his procedure, the doctor called the wife to tell her the unfortunate news that he had been unable to extract sperm needed for IVF. He recommended that the couple begin thinking about other options, such as adoption or sperm donation.
“Then a couple of hours later, the doctor called the wife back and said: ‘It’s a miracle — the embryologist has been able to elicit viable sperm and embryos have already been created in the lab,'” Ginzburg said.
The couple proceeded with the IVF treatment and their first child, now around four years old, was born. Two years later, they used one of their frozen embryos to have a second child.
According to Ginzburg, the couple was concerned when the second child showed developmental delays. A geneticist advised them to do a test to determine if there was any genetic basis for the apparent problems.
“The first test came back fine, but the geneticist recommended doing a more advanced genetic test called exome sequencing. So blood was taken from the child, from the mother and from the father here in Israel and sent to Germany, where there are labs that are experts in this,” said Ginzburg, who is representing the couple together with colleague Anat Ginzburg.
“After a few weeks, there was a request for the father to give another blood sample, and it was done without much question,” he continued.
Several weeks later, the geneticist asked the mother to come into her office.
“That’s when she told her the worst possible news — that her husband was not the biological father of the child. It was like a bomb was dropped on the couple,” their attorney said.
The geneticist told the wife that the couple’s older child was surely also not related biologically to the husband, given that both children were born from the same batch of IVF embryos.
When the couple learned of the genetic non-match, they approached Assuta without legal representation. According to Ginzburg, they met several times with top Assuta officials, who apologized for what happened, said they didn’t know how such an error could have happened, and offered to make things right.
“They even offered to make a deal ‘under the table,’ as they say. This was already the second such incident that Assuta was contending with and they didn’t want attention brought to this major negligence. They also did not report it as they were supposed to according to protocol,” Ginzburg said.
Ginzburg referred to a woman who discovered in September 2022 that her embryo had been mixed up at Assuta’s Rishon Lezion branch. She and her husband waged a months-long legal battle to keep the baby, Sophia, who was born in October.
In that case, the Health Ministry initially sought to find the child’s biological parents, but after one couple thought most likely to be the parents was ruled out by tests, officials announced in November that they would halt the search.
In March 2023, the Supreme Court decided not to allow further genetic testing to go ahead on six other potential couples to determine if they were the biological parents of the child.
According to the ruling, justices determined that there was very little chance that the six couples may be the biological parents and that the birth mother and her husband’s legal claim over the child was stronger.
After initially putting restrictions on operations at Assuta Rishon Lezion, the Health Ministry announced on August 2 that it was allowing IVF treatments there to increase by 75 percent following checks (including spot checks) showing improvement in operations. Whereas the government had limited the number of treatments in 24 hours to 16, it was now allowing it to be raised to approximately 25.
This change followed the government’s trying to incentivize public hospitals to take on more IVF patients and make the public options more attractive to those seeking treatment. Also, a large group of leading fertility specialists (some from Assuta) sent a letter to Health Minister Moshe Arbel, Health Ministry Director-General Moshe Bar Siman Tov, and Attorney General Gali Baharav Miara, stating that the limiting of IVF treatments was hurting patients desperately seeking to start or expand their families.
Ginzburg, the attorney, told The Times of Israel that while Assuta had not reported the incident involving his clients, the geneticist the couple consulted with carried out her legal duty to do so.
“That’s when the story exploded and the couple came to our firm for representation. After reviewing the material and perceiving a lot of failures, and getting an expert opinion, we decided to file the suit,” Ginzburg said.
“What’s going on at Assuta is that it is that it is like a money factory. They work 24/7, there’s a heavy load. In the end, it’s a business, and, sadly, something very serious happened here. It’s not just that the husband is not the father. It also has ethical and medical repercussions. There is also a Jewish religious aspect,” he added. (According to Orthodox Jewish law, a child born to a woman who was legally married at the time to someone other than the child’s father is a mamzer, or bastard, and is limited as to who he or she can marry.)
The medical malpractice suit filed at the Central District Court seeks an unprecedented sum for damages and emotional distress caused by lack of genetic affinity.
Ginzburg said his clients are willing to cooperate with the Health Ministry’s investigation of Assuta and would undergo any required medical tests.
As of Wednesday evening, the Health Ministry has not responded to a request for comment.
Assuta sent The Times of Israel a statement saying: “We are talking about treatment that took place in 2018 and is being examined by the Health Ministry. Assuta is waiting for results.
“From the moment that the couple approached Assuta, it looked into the case with the couple and acted with compassion and transparency toward them. Assuta explained to them about the tests that need to be done according to the law. These tests have not yet been done by the couple, which makes it difficult to look into the matter,” the statement continued.
When The Times of Israel asked what tests needed to be done, an Assuta spokesperson said it was “a set of tests by means of which it will be possible to clarify what the truth is.”
Ginzburg said that his clients also want the truth to come to light about exactly what had happened to cause the husband not to be the biological father of their children.
Already traumatized, the couple is guarding their anonymity. Ginzburg confirmed that they do not plan to share the shocking genetic revelation with family members or their children.
“They have said they are going to take this information to their graves,” Ginzburg said.
