Father wins case against fertility clinic

In one of the first legal cases in Massachusetts involving the largely unregulated field of fertility treatment, a Middlesex County jury awarded more than $100,000 yesterday to a Dennis man who said that a Boston fertility clinic impregnated his estranged wife without his permission and should pay his share of child support for his now 7-year-old daughter.

The verdict was against Boston IVF, the clinic which implanted the previously frozen embryo into Meredith McLeod, the former wife of Richard J. Gladu Jr., who had sued the clinic and two doctors, saying that he had not consented to the implantation. The jury found that the clinic was at fault for not seeking Gladu's written consent before impregnating McLeod with an embryo not used from a previous successful procedure that Gladu had authorized.

The two doctors sued by Gladu, Merle Berger and Selwyn Oskowitz, were cleared of malpractice and negligence claims. The jury found that they had handled the medical procedure and the patient relationship properly.

"The industry now knows if they're going to create a man's child without his consent, they're going to be spending money to raise his child," Gladu's lawyer, Lisa Arrowood, told the Associated Press.

The jury awarded $98,000 to Gladu, based on testimony from an expert witness that he would need that amount of money to support the daughter who resulted from the fertility procedure. He was also awarded an additional $10,000 for emotional distress.

Gladu testified that he has been treated for major depression since his daughter's birth and struggles 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 testified. "I know I can't blame her."

Gladu had sought $3 million in his suit, which was filed in 1998.

Brian D. Bixby, McLeod's lawyer, said his client will go to court, if necessary, to make sure the $98,000 will go toward caring for the child.

McLeod declined to discuss the verdict. But Bixby said she was relieved the case was over, especially since her children's names were made public during the trial. Bixby said the case is a cautionary tale to potential parents. "There is certainly some instruction to parents in situations like this to make sure that if they do not want frozen embryos or any other artificial means of insemination used, they need to make sure that anything they have contributed to is destroyed," he said.

Bixby said McLeod was disappointed the case had gone to court. "It certainly does not send a good message to a child to have a parent saying that he needs to receive damages because the child was born," he said.

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. 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 did not 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.

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

Since the case was filed, most fertility clinics overhauled their procedures, drafting more complex consent agreements and checking with both parents before thawing and implanting frozen embryos, said George J. Annas, chairman of Boston University's Department of Health Law, Bioethics and Human Rights. Boston IVF plans to appeal the verdict, clinic spokeswoman Constance Jarowey said.

"The doctors are exonerated, which was the most important issue for us," Jarowey said.

The jury, however, found the clinic committed a breach of contract by not informing Gladu before impregnating his wife. If the jury's verdict is upheld after appeal, Jarowey said, fertility clinics will be held to an unrealistic standard for guaranteeing that both parents are on board at every stage of fertility treatment.

"We'll have to find another means of ensuring that both parties have the same point of view and are in agreement," Jarowey said.

In the years since the lawsuit was filed, the fertility field has evolved dramatically.

"Practices have changed," Jarowey said. "In 1995, embryo freezing was a relatively new technology. Since this case was filed, literally every week the consent forms are reviewed."

Even though the jury found the clinic liable, it awarded only a fraction of the $3 million Gladu had sought.

"The jury sent kind of a mixed message," Annas said. "They didn't think the doctors did anything wrong, but that the clinic should have had more explicit procedures to make sure they have the consent of the husband every time they did an embryo transfer." During the trial, Gladu testified that he pays child support for his daughter and that he has suffered financially. He also said he had to retire from his job as a Wayland firefighter. Kathleen Burge of the Globe staff contributed to this report.