Local Couples Claim Dead or Damaged Embryos Were Knowingly Implanted During IVF Treatments

Nicole and Agustin Alarcon said they don’t know what the next steps of their fertility journey will be after receiving news from their physician that their embryos were affected in a laboratory failure.

The husband-and-wife duo started looking into fertility treatments at the end of last year with Aspire Houston Fertility Institute after roughly five years of trying to start their family. Two failed intrauterine inseminations later, they began in vitro fertilization.

The egg retrieval was successful, and made 14 embryos. Three failed transfers later — one ending in a miscarriage — and the couple wondered what was wrong.

“We did testing. We were trying to figure out why it was happening,” Nicole said. “We were searching for some answers, and shortly after that, we received a call from the doctor.”

“All of it is awful, but we found out that Aspire had known about these issues with the embryos and completely just kept us in the dark,” she added. “We didn’t know about this the entire time while going through these transfers. The same embryos that they’re saying were destroyed were the embryos that they were putting inside [me] for the three transfers.”

The Alarcons are two of the ten plaintiffs — four other couples who elected to remain anonymous — in a case filed in Harris County District Court on Monday against Aspire and California-based fertility and women’s health company CooperSurgical Inc.

Per court filings, the lawsuit accuses them of notifying the patients affected by the lab failure months after it occurred between February and March. The fertility institute allegedly knew about the damaged or dead embryos before implanting them into patients.

Aspire claims the failure was caused by a CooperSurgical Inc. freezing medium — a solution to help protect embryos during freezing — that was either contaminated or defective, according to court documents.

CooperSurgical Inc. is not a stranger to legal issues related to its products. In 2024, three couples sued the fertility product company, alleging that their developing embryos died after coming in contact with its defective embryo culture media. This substance helps with the development of fertilized embryos.

“There’s a real disturbing trend in fertility medicine these days. It has become a big business, and it is now being run like a business rather than a healthcare facility that helps people start or add to their families,” Rob Marcereau, one of the founding partners of Fertility Law Group, said. “The focus has shifted from people to profits, and patients have suffered as a result.”

Marcereau, one of the four attorneys representing the plaintiffs in the case, added many of the cases his firm handles get settled before lawsuits are filed because there’s an incentive for these fertility clinics to keep it quiet.

“That’s why it’s so important, in this particular case, we’re able to file a public lawsuit,” he said.

Nicole’s unsuccessful transfers took place in March, April, and June. The call from her physician—whom Marcereau declined to name—notifying her of the situation came only three weeks ago. Nicole said the doctor told her he was giving the couple a call because of a Facebook post circulating that included what the doctor referred to as incorrect information he wanted to clear up.

“So, I was like, you’re not calling us because it’s the right thing to do, and our embryos are affected?” Nicole said. “You’re calling us because it’s gaining traction on social media? That was awful. It felt very impersonal.”

Aspire posted a public statement on its website at the end of August, notifying all patients that any affected by the failure had already been notified. Yet, at that time, the Alarcons had not.

“To be quite honest with you, even today, I still believe that all patients that were affected by this have not been notified,” Nicole said.

“It’s hard to want to go with Aspire because the trust is no longer there. They were dishonest, and it’s just a difficult situation to navigate,” Agustin added. “We’re just taking it day by day. It’s just tough to be in this kind of mind.”

Marcereau confirmed he also believes that there may still be many patients who have not been told, as dozens of embryos were estimated to have been damaged or killed as a result of the failure.

He noted that in the few cases in which the women did get pregnant, they may not have been informed yet that their babies are at an increased risk of developing birth defects due to the exposure to the chemicals that were in the lab.

A hearing in Harris County District Court has not been scheduled yet.