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Ex-husband sues clinic over birth of daughter

By John Ellement and Thanassis Cambanis
Globe Staff / January 15, 2004

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CAMBRIDGE -- Two frozen embryos. An estranged husband and wife. A state-of-the-art fertility clinic.

For Meredith McLeod, it added up to a dream come true: a third child and the chance to rescue her marriage.

For Richard J. Gladu Jr., however, his then-wife's decision to initiate a pregnancy he didn't want -- using one of those frozen embryos created with a donated egg fertilized with his sperm -- sent his life into a downward spiral.

Now, in a case that legal experts say has major implications for the mostly unregulated world of fertility clinics, where few, if any, laws govern the handling and use of frozen embryos, Gladu has sued the clinic that helped his wife have a child without consulting him.

In the latest Massachusetts case concerning the use of frozen embryos, Gladu is suing the Boston IVF clinic and two of its founders, Drs. Selwyn P. Oskowitz and Merle J. Berger, for medical malpractice and for the emotional distress he says he has suffered since 1996, when he learned that his then-wife was pregnant with their third child, a daughter who turns 8 in September. The couple has since divorced.

"It's not who she is," Gladu, a retired Wayland firefighter, said of his daughter during testimony yesterday in Middlesex Superior Court. "It's how she came into this world that concerns me."

The lawsuit, say lawyers and legal specialists who follow the burgeoning but relatively uncharted body of law surrounding reproductive technology, is important because few statutes or regulations govern the management of frozen embryos by couples trying to have children.

In a landmark 2000 case, the Massachusetts Supreme Judicial Court ruled that no one can be forced into parenthood, and barred a woman from having a child with an embryo fertilized by her ex-husband -- even though he had signed a contract giving his wife control of the embryos in the event of a separation.

"These are issues that people have not really wrestled with, so it's left to the courts to decide on a case-by-case basis," said Gretchen Van Ness, the Boston attorney who represented the mother in the 2000 case.

Gladu's case raises a different legal question. He has not sued his ex-wife for forcing him into paternity -- what is known colloquially in legal circles as a "wrongful birth case." Rather, he has accused the clinic and the doctor who impregnated his wife of violating the contract the couple had signed when they entered fertility treatment.

In court yesterday, Gladu testified that shortly after he married McLeod in 1989 they learned she was infertile. They adopted their first child, a daughter who they later learned had a rare form of cerebral palsy, and then went to Boston IVF for help to have a second child. Using Gladu's sperm and an egg donated by an anonymous woman, the clinic created five embryos. Three of the embryos were implanted in McLeod, who gave birth to a son, Sterling.

After his son's birth, Gladu said he believed that the two embryos remaining at the clinic would be donated to another couple or discarded. He said he told McLeod in 1995 that he did not want more children, in part because their marriage was rocky.

However, McLeod went to the clinic on Dec. 28, 1995, where Berger implanted the remaining embryos. Gladu testified that he didn't know his wife had undergone the procedure until January 1996, when she called him at the Wayland fire station and told him she was pregnant again.

"It's just been a devastating nightmare," he said of his life since he learned he would be a father for a third time. "I think if it hadn't happened -- who knows -- I'd still be a firefighter, I'd still be living in Wayland . . . It took my family away. It took my life away."

Gladu testified that he pays child support for his daughter, and that he has suffered financially. Gladu said he has been treated for major depression since his daughter's birth and struggles, on the rare occasions when he sees her, to separate his anger at the circumstances of her birth from his love for her. McLeod and Gladu are fighting over visitation issues in probate court. "It makes me feel wicked guilty," he said. "I know I can't blame her."

After he learned McLeod was pregnant, Gladu said he called Oskowitz and told him the procedure was done without his permission. He said Oskowitz told him a "big mistake" had been made and urged the couple to come and meet him. Gladu said his wife refused.

In their opening statements to the jury, attorneys for the clinic and the doctors said they followed the proper patient protocol in effect in 1995. They also said that Gladu has not suffered any emotional harm from having a third child, noting that he has told his own therapists that any time he spends with his three children lifts his spirits.

They also said that under consent agreements Gladu signed, it was his responsibility to notify the clinic that he did not want additional children or that his marital status had changed.

According to George Annas, chairman of Boston University's department of Health Law, Bioethics, and Human Rights, Gladu's lawsuit has already changed procedures at the nationally renowned fertility clinics in Greater Boston. It's now common for doctors to make sure both parents grant full consent before an embryo is implanted, he said.

Couples usually sign complicated contracts when they undergo fertility treatment, addressing what should be done with frozen embryos in the event of death or divorce. But in the 2000 case, the SJC ruled that once the husband changed his mind about the embryos, the contract he had signed with his wife was no longer valid -- suggesting, Annas said, that contracts signed at fertility clinics, no matter how detailed, might not pass muster in a court of law. Even now, after years of litigation, Annas said, there are no federal laws and few state laws that regulate the fertility industry. "There's a lot of flexibility and uncertainty still. There are no hard and fast rules," he said.

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