In the days after Daphna Cardinale delivered her second child, she experienced a rare sense of calm and wonder. The feeling was a relief after so much worrying: She and her husband, Alexander, had tried for three years to conceive before turning to in vitro fertilization, and Daphna, once pregnant, had frequent and painful early contractions. But now, miraculously, here was their baby, their perfect baby, May, with black hair plastered on her head. (May is a nickname that her parents requested to protect her privacy.)
Because everything about May felt like an unexpected gift, Daphna was not surprised to find that she was an easy newborn: a good eater, a strong sleeper. The couple settled May into her lavender bedroom in their home in a suburb of Los Angeles. Daphna, on leave from her work as a therapist, was grateful for the bounty of two children, overjoyed that she could deliver to her older daughter, Olivia, then 5, the sister she had begged for since she could speak in full sentences.
Alexander, a singer and songwriter, wanted to share his wife’s happiness, but instead he was preoccupied by a concern that he was reluctant to voice: May did not look to him like a member of their family. She certainly did not resemble him, a man of Italian descent with fair hair and light brown eyes, or Daphna, a redhead with Ashkenazi Jewish heritage. Alexander often turns to dark humor to mask a simmering anxiety, and in the days after the birth, he started to joke that their I.V.F. clinic had made a mistake. Later he would explain that the jokes were a kind of superstition, a way of warding off something threatening: If you say the horrible thing out loud, it won’t happen. But friends and family members were also commenting to him on the striking difference in appearance — Alexander’s mother, for example, told him, out of Daphna’s earshot, that she would have guessed that at least one of May’s parents was Asian.
Alexander would convince himself that everything was fine, only to be walloped once again by the suspicion that May was not his genetic child. Daphna, who was accustomed to calming Alexander’s worries, quickly tired of his nervous jokes about the clinic. Looking back, she realized that her consciousness was working on two levels, that her mind was laboring not to see what was fairly obvious. She often sought reassurance from a baby photo of herself that her mother sent her, in which she closely resembled May. But occasionally, when Daphna looked in the mirror, she would see her own face and think it looked strange — as if there were something wrong with her.
Trying to ease Alexander’s mind, Daphna ordered a DNA testing kit. But Alexander, threatened by its ominous presence on the night stand in their bedroom, was reluctant to go anywhere near it. Daphna grew concerned enough about Alexander’s low mood that she called his best friend for advice. That friend was the first person brave enough to tell Daphna directly what he really thought: At least one of them was not May’s genetic parent. His certainty startled Daphna. Suddenly, when she looked at May, she could see what he was seeing — she could understand Alexander’s alarm. Finally, in November 2019, they sent DNA samples off to a testing company. Then they waited.
Three weeks passed before the results appeared in Alexander’s inbox. By then, May was about 2 months old, the point in babies’ lives when they can track their mothers’ movements around a room, when they are comforted by being picked up, when their faces brighten at a caregiver’s approach. May had just started smiling back when her family members smiled at her, an emotional call and response that delighted Olivia, who often watched TV with May comfortably nestled by her side.
Alexander opened the email on his phone, as Daphna, holding May, paced around their bedroom. She saw her husband’s face immediately look drawn; his body language registered defeat. He read out loud: “99.9 percent likelihood, not a match for the father.”
“But what about me?” Daphna asked twice, quickly. She was sure that one of them must be May’s parent, the way some people who play the lottery feel certain, no matter how irrationally, that this time they’ve picked the right numbers. Alexander scanned: “99.9 percent likelihood,” he told her, “not a match for the mother.”
Ten minutes later, a babysitter arrived to watch May while Alexander and Daphna took Olivia to see “Frozen 2,” a long-promised outing. In the theater, they sat on either side of her, tears running down their cheeks in the dark, trying to understand what this news meant for their family. If the clinic had given them another couple’s embryo, what did that suggest about the fate of their own embryos? If they tried to find out and informed the clinic of the error, could they end up losing May? Even if they did nothing, could they lose May to her genetic parents, who might already be desperately trying to find her?
In the days that followed, Daphna learned with mounting distress that the law generally privileged genetic parents in the very rare cases like theirs. Just a few months earlier, a lawsuit had made the news involving a woman in New York who gave birth to two boys, neither of whom, it became obvious after their birth, shared her and her husband’s Korean American ancestry. Nor were the boys related to each other, the clinic determined when it investigated. The embryos came from two other couples, both of whom sued for custody. The Korean American woman fought to raise the boys but lost in court. She was forced, heartbroken, to relinquish her babies to their respective genetic parents.
Daphna and Alexander were under no legal obligation to tell anyone about the DNA test results, but they knew, with an agonizing clarity, that they had to contact the clinic to share what they had learned. They felt that they owed it to May to try to find her genetic parents — even if it meant losing her. “We didn’t want to be those people who were so desperate for a baby that we were going to deprive someone of theirs,” Daphna told me. “It felt like a kidnapping.” They also wanted to know what happened to their own embryos: Were they all still in the lab? If any were missing, had they been accidentally destroyed — or transferred to someone else? The couple retained a surrogacy lawyer, Andrew Vorzimer, who reached out to the clinic […] which opened an investigation.
Life took on a nightmarish quality for Daphna, who felt the possible loss of May every time she held her close. Some days she felt numb; some days she cried alone in her bedroom. Every time there was a knock on the door, she was afraid that it would be a lawyer or social worker with official-looking papers, there to take May away. Rather than distancing her from May, the thought of losing her only deepened the tenderness Daphna felt toward her. “I felt like I had to pour as much love into her as I could,” she told me, “almost like the way you store up for winter.” Olivia, who knew nothing of her parents’ concerns, also grew more attached to her baby sister. Daphna once went to lay May down in her crib and found, where the pillow would be, a drawing of a rainbow that Olivia had put there as a gift for her little sister.
On Dec. 6, Vorzimer called as Daphna was changing May’s diaper. He had news: The fertility clinic had identified May’s parents. The clinic saw couples from around the world, but May’s genetic parents, astonishingly, lived only 10 minutes away in a nearby suburb. Alexander’s mother would turn out to be right: The father was Asian American; the mother was Latina. “So I just lost my baby,” Daphna said to Vorzimer, holding May in her arms. “I just lost my baby, right?” He couldn’t be sure what it meant, he told her. But in the coming days, he relayed more news: The other family had a baby the same age as May, a little girl with blue eyes. She was Daphna and Alexander’s genetic child, and her name was Zoë.
The other couple did not have the prolonged process of waiting and discovery that Daphna and Alexander had. Instead, there was an urgent phone call from the clinic, their fertility doctor weeping as he explained that there had been a terrible mistake: They had been raising the genetic child of another couple, who had been raising theirs. The conversation was a shock that plunged them into grief, even if Zoë’s mother, Annie, wasn’t entirely surprised. On some level, she had been waiting for a phone call like that one. (Annie is a nickname, and her husband’s name is being withheld at their request to protect their privacy.)
Annie and her husband had their first child, a son, when she was in her early 40s. He was about 2 when they turned to I.V.F. to try to have a second. When Annie gave birth to a daughter with surprisingly fair hair, the extended family on both sides took it in stride as one of life’s flourishes of fate, a reminder of the mysteries of biology.
In the first weeks after the birth, Annie felt that all was as it should be: Zoë latched easily, and Annie loved the closeness she felt when she nursed her, their bodies aligned in mutual comfort in the hazy hours of the early morning. When Zoë was about 2 months old, her eye color developed into a deep blue, which Annie found confusing enough that she asked her pediatrician about it; he reassured her that recessive genes surprise parents all the time. But Annie still felt uneasy when friends commented on her baby’s looks — how light-haired she was, how remarkable it was that Annie could have given birth to her. After the phone call from the doctor, Annie, who was already experiencing bouts of melancholy after Zoë’s birth, sank into a depression. She had never felt closer to her daughter, but because of the shock, she thought, her milk dried out. She could no longer nurse.
The day after Christmas, the two couples exchanged voice mail messages and agreed to meet the next day at a law firm near their homes. Alexander was a compulsive documenter who often captured video of important family moments, and he planned to use his phone to create a record of the event. He and Daphna arrived first and waited in a conference room to meet the people who might determine May’s fate. They stood awkwardly by a table as the other couple entered. Annie was several inches shorter than Daphna, with the dramatic looks of a movie star, her hair long and dark. Her husband was trim and about Alexander’s height. They knew his face well — because it was their daughter’s face.
Daphna walked up to Annie, and the two women stared at each other. Then Daphna leaned down and hugged Annie, who hugged her back, their embrace close and quiet. They stayed that way, clinging to each other, while Alexander and Annie’s husband shook hands, exchanged names, stuck their hands in their jacket pockets and looked everywhere in the room but at each other. When the two women pulled apart, Daphna said to Annie, “How are you doing?” Annie, her face grave, answered: “Terrible.”
The two couples relaxed: Each sensed in the other a basic decency; they took comfort in being with other people who could fully understand their surreal dilemma. They talked for a long time about how painful any resolution of the situation would be. They cried together. At times, they sat in silence. Alexander could sense that both mothers were avoiding having to speak plainly of what the future would hold. Finally, Daphna asked the question that was hovering in the air: “So, what are we going to do?”
May and Zoë were no longer newborns but babies who had, by then, spent three months hearing their siblings laugh, smelling their mothers’ scents, seeing the particular shade of dark that descended in their rooms when night fell. Could the parents now possibly rip them from all the comfort they’d known, in the name of some genetic allegiance? The known cases of I.V.F. mix-ups like theirs were rare enough that the two couples had little precedent to turn to for guidance.
Daphna knew from her training as a therapist that, at 3 months, the girls weren’t yet fully awake to the world. Their senses were still developing; their vision was cloudy beyond close range. She and Alexander felt bonded to May, and they felt that she was bonded to them — she knew her name and lit up when they looked into her eyes. But they knew that children who are adopted into loving homes, even at much older ages, are expected to thrive, especially if their early caregivers were nurturing. “It’s a difficult change — but doable,” Beatrice Beebe, a psychology professor at Columbia University’s medical school who studies infant development, told me. “The baby would have to learn a whole new set of patterns, but babies are fantastic learners.”
After going over every nuance, every emotional response and logical argument on every side, Alexander had resolved that they should switch the babies. He felt, more so than Daphna, the imperative to raise the child they’d intended to bring into the world. “There’s a pull, genetically,” he said. That Zoë would live so close, that he would know of her existence but not raise her felt like “upside-down world,” as he put it. But heading into the meeting, he had no way of knowing what Annie and her husband felt — whether they would fight to maintain custody of Zoë.
When Daphna posed the question to the room, Annie looked bewildered. “I don’t know what to do,” she said. Both of them wept as the conversation circled closer to a resolution. Finally, Annie’s husband said out loud what Annie knew, going into the meeting, would most likely be the collective decision: They would switch the babies. Alexander felt relieved that someone had said it so clearly; he knew that neither of the mothers ever would. As shaken as they were, the couples were in agreement.
But how to do it? They knew they couldn’t just turn their babies over — it didn’t feel healthy for Zoë and May, and at any rate, the parents weren’t emotionally ready. Should they make the transition with regular visits over six months? Three months? They decided they would start feeling their way toward this major shift. The babies, they all believed, would adjust. Privately, each couple wondered if they could, too.
Having made it through one dreaded conversation, Daphna and Alexander now prepared for another: They had to tell Olivia. How to explain to one young daughter that you are voluntarily giving up another? They resolved to make it as simple as possible; their voices would be bright and reassuring, their emphasis on the new baby who was going to come into their lives — one who looked just like her. The day after Daphna and Alexander met with Annie and her husband, they approached Olivia, who was lying on the couch in the living room, a blue blanket half-draped on her.
“What if I told you you had another sister?” Daphna started out. Olivia looked mildly curious and stared at her mother’s stomach, clearly imagining she was pregnant.
Daphna asked if she had ever noticed that May looked different from the rest of the family. “Yeah,” Olivia responded, which somehow surprised Daphna, because she had never mentioned it. The “So what?” in Olivia’s tone was heavily implied. Daphna explained to Olivia that there was another baby who was a part of their family and that she was gaining a sister after a bit of a mix-up. Daphna said nothing about making a switch, but Olivia was quick to figure it out.
“Wait,” she said, sitting up abruptly. She asked: Did this mean they were losing May?
Alexander responded, reflexively: No, he assured her, we’ll always have her. Daphna groaned internally. That wasn’t true, and it would be an awful promise to break; at the same time, she knew that, in the moment, it seemed like the only possible answer.
Alexander told Olivia not to be scared, but Olivia started shutting down. She made a small whimpering noise. She asked again: Were they going to give her sister away?
As Daphna tried to comfort Olivia, she burned with anger at the clinic. Somewhere along the way, a mistake had been made. Daphna knew errors could happen when embryos were being tested for genetic birth defects or when they were being transferred to the mothers. Someone must have been careless, she thought, someone who had, unknowingly, thrown her family into chaos. Alexander felt that he had been played the fool — made to love a baby who wasn’t his to raise.
Eventually, the couple hired another lawyer, Adam Wolf, and filed suit against the clinic, alleging medical malpractice, negligence and breach of contract. Wolf, who specializes in suing fertility clinics that have been responsible for life-altering errors, says he had encountered fewer than 10 cases in which an embryo was transferred to the wrong woman. But he estimates that over the past decade, he has represented more than 1,000 plaintiffs accusing clinics and their suppliers of misconduct or negligence, most commonly because embryos in their care have been accidentally lost, damaged or destroyed.
In one instance, he represented a couple who asked a fertility clinic to test their embryos for a genetic mutation the husband carried that is associated with a type of often-lethal stomach cancer. The clinic helped the couple conceive a child, whom they were told was free of the genetic mutation. But a year later, when the parents returned to the clinic to have a second child, they discovered that the clinic had made a mistake: Their 1-year-old was a carrier.
Wolf believes that the public becomes aware of only a fraction of the errors that occur in fertility-clinic labs. In Zoë and May’s cases, as in the case of the twins carried by the Korean American woman in New York, the mistake was apparent because the children were a different race from the birth parents. In most instances, parents who accept and bond with their baby may never suspect something is wrong. Even when discovered, such mistakes rarely make the news. “Most of my cases you never hear about, because we settle them before we file lawsuits,” Wolf said. “And the settlement agreements have confidentiality agreements, because the clinics want to ensure that there will be no negative publicity as a result of its error.”
I.V.F. procedures are underregulated relative to most medical procedures, says Dov Fox, a law professor at the University of San Diego with a focus on bioethics. States do not mandate that fertility clinics report preventable and damaging mistakes when they happen, as is required of hospitals. Some emblematic problems, Fox told me, included clinics or labs relying on pen-and-paper labeling systems and faulty screening measures; Wolf cited a failure of clinic employees to respond to alarms on the freezers that store embryos. “I sometimes think of our lawsuits as the policing of the fertility industry,” Wolf said, “because nobody else is holding them accountable.”
Now heavily dominated by private equity, the industry is rife with for-profit, high-volume fertility clinics operating in a regulatory dead zone. Oversight of fertility clinics has been limited, Fox said, because of the challenges it poses politically: Although many conservatives would like to impose restrictions, including limiting the number of embryos a lab can create, they have historically not wanted to jeopardize efforts to restrict abortion by also attacking I.V.F., which is broadly popular. Many Democrats, meanwhile, have been reluctant to regulate the industry for fear of opening the door to restrictions that might, for example, limit who is eligible for I.V.F. (as in some countries, where gay couples are excluded). Fox expects that the overturning of Roe v. Wade will lead to new scrutiny of I.V.F., which might ultimately threaten its wide availability.
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Full Story: The New York Times November 25 2024
