Firm Sues UCI Over Unclaimed Embryos, Sperm

More than 1,000 frozen embryos belonging to hundreds of people who went to UC Irvine’s now-closed fertility clinic are languishing unclaimed at a Century City sperm bank, according to a lawsuit filed Friday in Orange County Superior Court.

“We did them a favor two years ago, and now we’re suing the people we wanted to help out,” said Dr. Cappy Rothman, director of California Cryobank Inc., the largest sperm bank in the world. “We’ve gone from good Samaritan to adversary.”

According to Cryobank’s lawsuit against UC Irvine and the former fertility doctors involved in its scandal, the conflict stems from a phone call to the sperm bank in June 1995, by Dr. Ricardo H. Asch, then director of the university’s Center for Reproductive Health.

Asch asked the sperm bank to temporarily store some “genetic material,” according to the suit. That material consisted of embryos and semen that had been preserved in six UCI cryogenic metal storage tanks, four of them containing embryos and two containing hundreds of vials of semen.

At the time, Asch was beginning to be embroiled in a controversy that ultimately would result in charges that he stole human eggs and embryos and implanted them in other women without the owners’ knowledge.

Rothman said the sperm bank volunteered to store the material for 90 days.

“We were trying to help out,” he said. “There was a question about the safety of the embryos, and it seemed to all concerned that they would be the safest at the Cryobank.”

Three months later, according to Rothman and the lawsuit, the sperm bank granted the university a 90-day extension on the storage. But when that was up, he said, the university never showed up to claim the embryos and stopped returning the sperm bank’s calls.

“They don’t answer our calls and they don’t communicate with us,” Rothman said. “We have written them many letters and they don’t respond at all. They take no responsibility for these embryos.”

UCI spokeswoman Fran Tardiff said she could not comment because she had not seen the suit.

A lawyer who represented 35 clients caught up in the scandal said the problem is that the embryos may be misidentified. Melanie Blum of Orange said that all the embryo containers have labels; it’s just a question of whether the embryos were created with stolen eggs or not. The tag on an embryo container may say it belongs to Mr. and Mrs. Jones, she said, but it may have been created with Mr. Jones’ semen and an egg stolen from Mrs. Smith.

Eventually, according to the lawsuit, the sperm bank was able to get lists from the FBI and the university containing the names of nearly 500 people believed to be the “true owners” of the frozen sperm and embryos. Some of them were contacted by mail; others had no known addresses. To date, the lawsuit contends, 51 of the owners have retrieved their embryos and sperm samples while another 22 have established accounts with the sperm bank for continued storage.

But about 408 others, according to the lawsuit and Rothman, are the owners of sperm and more than 1,000 embryos that remain unclaimed.

The lawsuit, which also names Asch and his two former partners, Dr. Jose Balmaceda and Dr. Sergio Stone, asks that the remaining embryos and sperm be returned to UCI and that the university pay $8,910 for every month that Cryobank has stored the material since Dec. 11, 1995, when the last extension expired.

If the university is unable or unwilling to retrieve the materials, the lawsuit asks that the court instruct the sperm bank as to their disposition.

“What do we do with them?” Rothman asked. “I would like the court to give them back to UCI or, if not, to give us some instruction as to their disposition so that this is not a forever responsibility.”

The six UCI cryogenic containers are in a locked room by themselves to which only a handful of employees have access, Rothman said.

“We have a security system such that even in-house, no one person can ever handle those tanks,” he said. “There must be two people at all times to open it up--that’s been a tremendous responsibility for all this time.”

Attorney Blum said she’s not surprised that more people haven’t claimed embryos from California Cryobank.

“People who are in this whole fertility mess, many of them are just scared,” she said. “They don’t want to come forward. They don’t trust anybody.”

She said that all of her clients had already contacted California Cryobank and been told that none of the stored embryos belong to them.

She said she is amazed that the company, which originally accepted the embryos in what it described as an altruistic gesture, is now “looking around saying this is more trouble than it’s worth.”

“Why they took [the embryos] back then was a mystery to me,” Blum said. “I don’t know what possessed them to think this was a good idea. And now they turn around and are suing the university? That’s pretty hilarious.”

Asch, a native of Argentina, is said to be operating a fertility clinic in Mexico City. Balmaceda is reportedly doing the same in his native Chile. In November, federal prosecutors charged Asch with stealing eggs from former patients and charging both Asch and Balmaceda with mail fraud.

Stone, also a Chilean native, was taken into federal custody in October after he was convicted in Santa Ana on nine counts of fraudulently billing insurance companies. He had been free on $3-million bail since his indictment last year. He is scheduled to be sentenced in February.

Times staff writer Steve Carney contributed to this story.