Sperm banks accused of losing samples and lying about donors

MONTECITO, Calif. >> Even as she mourned the death of her 29-year-old husband from a rare genetic disorder, Sarah Robertson was comforted by knowing that six vials of his sperm were safely stored at the Reproductive Fertility Center — in Tank B, Canister 5, Cane G, Position 6, Color Blue — waiting until she was ready to have the baby they had both longed for.

But 10 years later, when she was ready to use the sperm from her husband, Aaron, she got devastating news. All six vials were missing.

“I’d been completely focused on having something of Aaron’s live on, and now there was nothing,” Robertson said in an interview at her in-laws’ home in Montecito.

Now she and her in-laws are suing the Los Angeles clinic, and its owner, Dr. Peyman Saadat, accusing them of negligence, fraud, breach of contract and intentional infliction of emotional distress. The suit, filed in May, also says the clinic misappropriated Robertson’s sperm — which had a 50 percent chance of carrying Marfan syndrome, the disorder that killed him — and used it to supply other patients who would not know to undergo testing to ensure their babies did not inherit the disorder.

The Robertsons’ case is part of a new wave of lawsuits against sperm banks, highlighting claims of deception and negligence, and adding an array of challenges beyond the longstanding issue of undetected genetic problems.

Saadat declined to be interviewed but denied the accusations in a statement.

Frozen sperm has become a major industry, dominated by a few large sperm banks, but with smaller stocks of sperm maintained at hundreds of assisted-reproduction centers nationwide. The Food and Drug Administration requires that donor sperm be tested for infectious diseases. Beyond that, sperm banks are lightly regulated. Several states require health department licensing of the labs, but only New York conducts routine inspections.

Some of the new cases accuse sperm banks of careless record-keeping, or mishandling or misappropriation of sperm banked for a client’s personal use. Others say the banks use hyped, misleading descriptions to market their donors.

Several cases accuse a Georgia facility of marketing sperm as belonging to a neuroscientist with a genius-level IQ who turned out to be a schizophrenic felon, and who has fathered at least 36 children.

“Even in New York, when they inspect, they’re looking at hygienic conditions not record-keeping,” said Arthur Caplan, a bioethics professor at New York University. “Nobody confirms that you have what you say you have.”

“It’s absurd that we have these materials so valuable that people pay to store them, but we run it like a 19th-century grocery.” he continued. “Cryopreservation has historically operated in a casual laissez-faire environment, where people were just supposed to trust.”

Sperm banks are not required to verify the information provided by donors, and lawyers familiar with the industry say many do not. They set their own limits on how many children a donor can sire, but unless the mothers voluntarily report the births, they may not know how many half-siblings are out there. Some, including the two largest, California Cryobank in Los Angeles and Fairfax Cryobank, headquartered in Virginia, test for many genetic conditions, while others test for very few.

So it is buyer beware — for people banking their own sperm for personal use after cancer treatment, and for those relying on a sperm bank’s description of an anonymous donor.

Sean Tipton, a spokesman for the American Society of Reproductive Medicine, said his group does not see a need for further regulation and believes the industry is generally reliable.

“All indications are that sperm donation has been a terrific way to help people start a family even if, as with anything that involves humans, there are mistakes and some less-than-perfect actors,” he said.

In the past, few problems with sperm came to light, because most families were unwilling to discuss such an intimate matter in public. But that is changing, with a demographic shift in sperm buyers.

Once, sperm banks served mostly heterosexual married couples in which the husband had a fertility problem, but today about two-thirds of the buyers are either lesbian couples and single women, who are more open about their children’s origins. With genetic testing widely available and relatively cheap, the concept of donor anonymity is increasingly open to question.

“I can personally attest that there are more cases than you ever hear about, but almost all settle before they get to court,” said Andrew Vorzimer, a California fertility lawyer representing the Robertsons.

Wendy Kramer, co-founder of the Donor Sibling Registry, which helps families connect with others who used the same donor, said she hears a steady stream of problems, including lost records and genetic issues reported to the sperm bank but never shared with all the donor’s offspring.

“People think it’s a medical industry, it must be regulated and trustworthy, but it’s just sperm sellers,” said Kramer, whose registry, founded in 2000, has more than 50,000 members, and has connected more than 13,000 relatives. “They can say whatever they want.”

In Florida, California, Canada and England, lawsuits are pending against Xytex, the Georgia facility that sold sperm from Donor 9623, James Christian Aggeles. The lawsuit claims the sperm bank described Aggeles as a genius-level neuroscientist with bachelor’s and master’s degrees who was pursuing a Ph.D. in neuroscience engineering. Instead, according to court papers, Aggeles did not have a college degree, had a history of psychiatric hospitalizations and had an arrest record that included burglary.

Many of the families that used Aggeles’ sperm had found each other before Xytex sent an email that accidentally included his email address, prompting intense internet sleuthing by the mothers to discover his identity.

“We found out a lot of things about him from public information,” said Angie Collins, an Ontario woman with a 9-year-old son fathered by Aggeles. “Xytex could have done that, too, if they’d wanted to. I think sperm banks should be required to get the donor’s medical records, and run a criminal-background check.”

Xytex would not discuss the case, but Ted Lavender, a lawyer for the company, said in a statement that Xytex “complies with all industry standards.”

Jennifer Cramblett, a white Ohio mother who mistakenly got sperm from a black donor, is suing the Midwest Sperm Bank in Downers Grove, Illinois., on the grounds of negligence. She and her partner had been sent vials from Donor 330, an African-American donor, rather than Donor 380, the white donor they had chosen, according to her lawsuit.

No one at the Midwest Sperm Bank would discuss the case.

Saadat, who was sued by Sarah Robertson, also faces a suit by Justin Hollman, a California man who froze five vials of his sperm before undergoing chemotherapy for testicular cancer at age 20. Years later, Hollman wanted his sperm transferred to his wife’s fertility doctor. When he was presented with paperwork, his lawsuit says, he noticed that it authorized the destruction of his sperm instead of the transfer.

After refusing to sign, the court papers say, Hollman got a call from Saadat later that day telling him the samples had been destroyed as a result of “human error.”

Hollman declined to discuss the case, and repeated calls to Saadat’s center and to his lawyers were not returned.

The Robertsons’ lawsuit also claims there was deception by the center, which on different occasions said the sperm either had never been stored there or had been destroyed in a fire. When Sarah Robertson initially asked for the sperm, according to court papers, the center told her that five of the six vials were missing. The complaint went on to say that Saadat urged her to try to get pregnant with the sixth vial, but the clinic’s manager later emailed that the sixth vial, too, was gone.

“When I got that email, I stood up and screamed,” said Robertson, who is a nurse practitioner.

The Robertsons still wonder what sperm Saadat would have used if Sarah Robertson had agreed to use the purported last vial to get pregnant.

“Was he just going to take someone’s sample at random?” Robertson asked. “It’s terrifying to imagine a health care business being operated so recklessly.”