‘We have two of your embryos’
A couple who sought fertility help long ago made peace with having just one child. Then the hospital asked for a storage fee
When the first letter from Women & Infants Hospital arrived in the mail in July 2017, Elaine Meyer thought perhaps it was a fundraising solicitation or a clerical error. The letter, which included a billing invoice, addressed her as “Dear Patient,” but she had not been a patient at the hospital for nearly two decades. That’s when she and her husband, Barry Prizant, had completed their infertility treatment there.
After three miscarriages, they had gone through several rounds of IVF at Women & Infants in Providence, R.I., near their home, resulting in the creation of at least 18 test-tube embryos. One of those had become their son, Noah, born in December 1996, and along with joy there had been a lot of mourning and reckoning with the reality that this would be the sole realization of their efforts.
Meyer mentioned the letter to her husband and stashed it in a filing cabinet of her home office.
But then another came the next month. “If you would like WIH to continue to store your embryos/oocytes,” the letter said, “please return a copy of this letter, signed and notarized, along with a check in the amount of $500.”
Meyer, a longtime psychologist at Boston Children’s Hospital and associate professor of psychology at Harvard Medical School, read it with confusion and a growing sense of alarm. Without the payment, the hospital would consider embryos “legally abandoned” and may discard them.
“I thought, ‘This can’t be right,’ ” she said. “We know we went back for all of our embryos.”
Those frozen embryos, still in the hospital’s possession, are now at the centre of a lawsuit Meyer and Prizant have filed in Rhode Island’s Superior Court, alleging breach of contract, negligence, bailment and intentional infliction of emotional distress — all of which Women & Infants denies in its response.
In a statement, a spokesperson there declined to comment on the case, citing patient confidentiality and federal privacy laws.
When the letters arrived, Meyer and Prizant, a speech and language pathologist and visiting scholar at Brown University, were then fulfilled empty-nesters. Noah was in college, a successful student and happy young man that Meyer, now 63, calls “the light of our lives.”
She was ensconced in her work educating students and health-care professionals on how to have difficult conversations with patients, upholding what she calls an “emotional standard of care.”
Prizant, 69, who specializes in children and adults on the autism spectrum, was training other practitioners and churning out papers and podcasts. He plays drums in a band and is proud of his roots in the stickball streets of Brooklyn. “Basically, I don’t like to take crap,” he said.
He and his wife, a former 4-H club member raised in a large working-class family in small-town Connecticut, met in 1985 while attending a conference at a psychiatric hospital. Married two years later, they wanted children but felt it was important for her to finish graduate school first. Meyer got pregnant at 34, then had a miscarriage. Two more miscarriages followed.
The couple first sought treatment from Dr. Gary Frishman at Women & Infants in 1995. Prizant gave his wife daily shots before her eggs were harvested at the clinic and mixed in a petri dish with his sperm to create embryos, some of which were implanted in Meyer’s uterus. The first two cycles didn’t work.
During a third cycle, Meyer became pregnant with Noah. After his birth, she and her husband were optimistic they could have another child. There were nine embryos left over from the three cycles, and they signed agreements with the hospital to “cryopreserve” them for implantation in the future.
After Noah started preschool, the couple began anew at Women & Infants in 2000 with shots and doctor appointments. The hospital would thaw the nine embryos, and those that survived this process would be implanted in Meyer’s uterus, in the hopes that at least one would develop into a pregnancy.
The couple said they were told all the embryos were thawed; they believe three survived the thaw and were implanted. But, weeks later, they were called in for “the failure conversation” — what Meyer called the meetings with doctors to discuss an unsuccessful procedure and possible next steps. This one was with Dr. David Keefe, then the director of the hospital’s division of reproductive medicine. He advised Meyer that, at 43, her and her husband’s most reasonable path to additional children was donor eggs or adoption.
Prizant was done, emotionally exhausted.
Meyer, a devoted Quaker, needed a little more time and spiritual consultation but also made peace, grateful for Noah. “We both decided,” Prizant said, “to look at having just one child as an opportunity to have more resources to serve many more children through our work.”
Reading the second letter, which like the first one asked for $500, filled Meyer with dread. She left a voicemail message at the hospital. Days later, she spoke to a person who turned out to be a clerk in the billing department.
“I am telling you, there are no embryos,” Meyer said, asking her to contact the lab itself.
For weeks, she waited for a call back. Nothing. She called the clerk again. “I’ve confirmed with the lab, there are two frozen embryos,” the clerk said.
Meyer was stunned, silent. Then she spoke. “Do you understand how serious this is?” she said.
A few days later, she was driving back from the family cottage in South Kingstown when Dr. Ruben Alvero, then the director of the fertility centre at Women & Infants, called to confirm.
“We have two of your embryos,” he said.
The embryos, Alvero said, had been found in a glass vial at the bottom of the tank. The vial has a crack in it, he told her, which meant the embryos had been exposed, possibly for a decade, to the nitrogen cooling agent. They most likely are not viable, he told her, and apologized.
A meeting was arranged for December of that year, between Meyer, her husband, Alvero and Richard Hackett, who helped to create and manages the IVF lab at Women & Infants. Frishman, who had been Meyer’s main doctor and is still on the staff at Women & Infants, did not attend.
The four gathered in a conference room, with Prizant and his wife on one side, Alvero and Hackett on the other.
According to the legal complaint, the men representing the hospital apologized for the circumstances that had brought them together and explained to the couple again what had happened. Two of Meyer’s and Prizant’s embryos had disappeared sometime before Meyer’s procedure in 2000, Meyer said they told her and her husband. The embryos were located in ’10 when the tank was emptied for cleaning or maintenance and re-entered into the inventory. The vial, as Alvero had told Meyer earlier in the fall, had been damaged. When the clinic implemented a new storage fee policy in ’17, the couple received the bills.
She asked if the cells of the embryo still physically existed. They did, the men told her. Although likely compromised, the embryos are still intact, in their glass vial with her name on it.
“Those are ours!” Meyer blurted out and said she didn’t want the embryos discarded. Alvero told her the hospital would continue to store them and he would waive the $500 fee. He and Hackett apologized and flipped through pages in her huge medical file, which the men had brought to the meeting. Hackett stopped on one page, she said, and began tapping his fingers on it: a handwritten note that said “2 missing.”
“You knew they were missing” and didn’t tell us, Meyer asked?
Perhaps the couple forgot they had been told the embryos were missing, they said Alvero suggested.
Prizant and Meyer were sure no one had ever told them anything was missing. Why would they have discussed adoption and egg donation if they had known two embryos were lost in the hospital? “That would have set us on a different course of action,” he said.
Keefe said he would have known embryos were missing only if someone from the lab had notified him, and in this case no one did.
Alvero, now the director of reproductive endocrinology and infertility at the Lucile Packard Children’s Hospital at Stanford University and the president of the Society for Reproductive Endocrinology and Infertility, referred questions to the public relations department of Women & Infants. The hospital’s spokesperson said Frishman and Hackett were not available for comment.
At the meeting in December 2017, Prizant and Meyer said, Alvero asked what might help them feel resolved about the situation.
The couple said they wanted to find something meaningful to come from the careless treatment of their embryos.
Alvero and Hackett said they would consult the hospital administration and get back in touch after the holidays. But, by May 2018, after five months of silence, Meyer and Prizant wrote a letter to Alvero, copying the hospital’s interim president and chief executive, the Rhode Island attorney general and the head of the state’s department of health.
“As parents who cherished children, we would NOT have forgotten that our embryos were missing,” they wrote. “We would not have rested until they were found and cared for.”
Soon after mailing the letter, they got a phone call from Katherine Wills, the hospital’s director of risk management. “‘This happened a long time ago,’ ” Meyer recalled Wills telling her. Meyer felt the message was, “Get over it.”
That conversation, she said, “was my line in the sand.” Meyer and her husband decided to take legal action.
They are seeking a jury trial and punitive, compensatory, consequential damages. But Meyer and Prizant said the real point of the lawsuit is to compel the hospital, and perhaps other infertility treatment providers, to commit to reliable and accountable storage management and patient care practices.
In a legal filing, the hospital alleged Meyer and Prizant “were guilty of comparative negligence” but provided no further detail. Angela Carr, the hospital’s lawyer, declined to comment.
“I would not be true to myself if I let this be swept under the rug,” Meyer said. “It is our job as parents to give our children, and in this case embryos, every opportunity for life and for dignity. We were denied our right to fulfil our role as parents.”
As Meyer’s and Prizant’s case winds its way through the pandemic-delayed civil court system, the couple is also thinking about what to do with their embryos.
After seeking spiritual support and guidance at their temple and their Quaker meeting, the couple is leaning toward repossessing their embryos and burying them in the backyard, where her mother’s ashes and the remains of the family dog are buried. They also have talked to a rabbi about a cemetery burial.
“We need to allow our embryos to finally have some peace and rest,” Meyer said.
“And we need to find some peace and rest ourselves.”