Lowell firm is sued on fetal gender test

Alleging that their pregnancies had been marred by fraud, 16 women have filed a class-action lawsuit against a Lowell laboratory that promises to determine the gender of an embryo by testing the mother's blood just five weeks after conception.

In the suit filed in US District Court in Boston, the women charged that despite its claim of 99.9 percent accuracy, Acu-Gen Biolab of Lowell got the genders of their babies wrong, causing confusion and distress, and then refused to make good on its double-your-money-back guarantee.

Pregnant women are ''a vulnerable group, or at least an emotional group," said Barry Gainey, whose New Jersey law firm, Gainey and McKenna, is leading the suit. ''When you're essentially guaranteeing a test is 99 percent accurate, people rely on you, and you can't make those sorts of representations and get away with it."

Gainey said he's seeking an injunction from a federal judge, prohibiting the company from falsely marketing the $275 ''Baby Gender Mentor" test and ordering Acu-Gen Biolab to honor its guarantee. The suit is also seeking restitution for all the women who purchased the device.

The gender test made a splash when it first appeared last summer, with a promise that cutting-edge science could detect tiny bits of fetal DNA in the mother's blood and offer parents-to-be foreknowledge of their future babies' sex earlier and more accurately than ever.

But controversy soon followed. The test raised warnings from some ethicists that it could be used for sex selection. Then, within months, complaints began to surface from mothers-to-be who were told their baby would be one gender, then received conflicting information when the fetus was scanned by ultrasound.

Acu-Gen and the test's marketer, Pregnancystore.com, which is based in Illinois and is also named in the suit, maintained the test was accurate and argued that ultrasound is notoriously inaccurate for determining gender.

Calls late yesterday to Acu-Gen and Pregnancystore.com, an e-mail to Dr. C.N. Wang, the lab's president, and a cellphone call to Sherry Bonelli, president of Pregnancystore.com's parent company, received no answers.

As questions about the Baby Gender Mentor test mounted in recent weeks, answers began to come: Babies began to be born, and some proved the predictions wrong. And women began to decide to sue.

The women named in the suit are from 10 states, from Connecticut to California.

Gainey said that dozens more women, including some from Massachusetts, may join the suit. They are asking a judge to certify them as a class to allow all complainants who bought the product since Jan. 1, 2004, to be represented.

The suit says the defendants touted the test as the ''gold standard for parental gender detection," with a 99.9 percent accuracy rate, and promised buyers a 200 percent refund if the results weren't correct, as long as they provided a copy of the child's birth certificate.

But the suit says the company refused to live up to its guarantee, insisting that women who complained of false results provide a blood sample or fingerprints of the newborn. And even after they complied, only one of the women filing the suit was given a refund, allegedly with frightening comments from Wang.

''One woman he gave a $200 refund and he told her something like, he was giving her money because he felt sorry for her . . . the baby was going to have defects," Gainey said.

The suit alleges that Wang told others who complained of conflicting results they might have abnormal fetuses, and that many women underwent dangerous and unnecessary procedures, including multiple ultrasounds, amniocentesis, and chromosomal testing as a result.

The suit says Wang refused to provide refunds, hung up on some of the women without offering a reason for denying their refunds, and told many of the women they should sue him.

Jennifer Beers, a Web developer in Greenland, N.H., who is not part of the lawsuit, planned for a boy after taking the gender test last year.

On Feb. 22, she sent this e-mail: Colby Belle ''Finally arrived this morning via C-section. She weighs 9 pounds 4 ounces, and is 21 inches long. I will let you know what Acu-Gen says."

Carey Goldberg can be reached at goldberg@globe.com.