MEMORANDUM OPINION
Rudolph Contreras, United States District Judge.
Denying
Plaintiff's Motion for Preliminary Injunction
I.
INTRODUCTION
For
years, Plaintiff E.M. used the services of Shady Grove
Fertility (“SGF”) in an effort to conceive a
biological child. But in early 2019, as E.M. was preparing to
use six eggs that SGF had frozen for her years earlier, SGF
dismissed her as a patient-a decision that E.M. alleges was
made in retaliation after she accused SGF of discriminating
against her on the basis of marital status, in violation of
the D.C. Human Rights Act (“DCHRA”), D.C. Code
§ 2-1402.31. Since the dismissal, SGF has maintained
that it would pay to transfer E.M.'s frozen eggs to
another medical provider in the area, where E.M. could resume
her fertility treatments. E.M. does not want her eggs moved,
though, and she thinks that treatment at SGF gives her the
best chance of successfully becoming pregnant and carrying to
term. She therefore brought this lawsuit, seeking not only
money damages but a permanent injunction preventing SGF from
dismissing her from its practice and discontinuing her
treatment.[1]
Presently
before the Court is E.M.'s motion for a preliminary
injunction, which would require SGF to reinstate her and
resume treatment while her lawsuit is pending. According to
E.M., such relief is necessary because her biological clock
does not permit her to delay treatment, moving her eggs to
another practice would make them less viable, and any other
clinic would provide inferior care. As explained below,
however, the Court finds E.M.'s contentions about the
risks of transferring her eggs and using another practice to
be too speculative to warrant the issuance of a preliminary
injunction. And the current hostility between the parties
makes reinstatement infeasible while they pursue discovery
and prepare for trial. The Court thus concludes that this
case is ill-suited for preliminary relief, and it denies
E.M.'s motion while reserving judgment as to whether she
is likely to ultimately succeed on the merits of her claims.
II.
FACTUAL BACKGROUND
E.M.
first started going to SGF in 2012. Compl. ¶ 6, ECF No.
2. At the time thirty-nine years old, she decided to enroll
in SGF's egg freezing program, under which multiple eggs
are surgically removed and cryopreserved for future fertility
use. Id. ¶¶ 6, 9. E.M. underwent one egg
freezing cycle that ultimately produced six cryopreserved
eggs-five mature and one immature, meaning of questionable
viability. Id. ¶ 24.
With
those age thirty-nine eggs saved for years down the road,
E.M. then spent the next few years trying to become pregnant
through other means. See Id. ¶¶ 34-45. Her
partner for these endeavors was J.S., with whom she has
“been in a sexually intimate and strong emotionally
supportive relationship” for about a decade.
Id. ¶ 35. Though E.M. and J.S. “are not
married or engaged, do not live together or share a
household, and have no legal or financial ties, ” he is
her “best friend” and they intend to co-parent
any child they conceive together. Id.; see
also Suppl. Decl. of E.M. ¶ 111, ECF No. 22. In
2014 and again in 2018, E.M. and J.S. conceived naturally,
but both pregnancies sadly ended in miscarriages. Compl.
¶¶ 34, 46. In the years in between, they together
underwent multiple cycles of intra-uterine insemination
(“IUI”) and in vitro fertilization
(“IVF”) treatments at SGF, but these treatments
were unsuccessful. Id. ¶¶ 41-42, 44-45.
So by
early 2019, E.M. decided that it was time to try to use her
frozen eggs. Id. ¶ 51. She returned to SGF on
January 15, and during that first appointment, she sought to
raise a few outstanding questions with SGF personnel.
Id. ¶ 54. Some of these questions were related
to finances. E.M. had long been aware of a “Shared Help
Discount Program” that SGF offered to patients whose
household income was below a certain threshold and who met
other criteria. Id. ¶ 61. Several years
earlier, E.M. had inquired about the program because she
believed that she was eligible, but her longtime doctor,
Barbara Osborn, had informed her that she was not, because
SGF's policy was to include J.S. as part of E.M.'s
household for purposes of calculating household income.
See Id. ¶ 63. E.M. disagreed with that
determination-maintaining that she and J.S. had no legal or
financial ties and that she should be permitted to have sole
financial responsibility for the treatments-but at the time,
she had declined to press the issue. See Id. ¶
64. By 2019, though, E.M. “believed it made sense to
follow up with SGF” about the discount program
“given the amount of money [she] had spent with [SGF]
by that time and the financial burden” that the next
stage of the egg freezing program would represent.
Id. ¶ 65.
E.M.
also had questions related to a consent form that she had
been provided. As E.M. understood it, SGF's
“Consent to Thaw” form would not allow her to
thaw any of her frozen eggs without J.S.'s authorization,
and it required J.S. to consent to procedures that involved
solely E.M.'s body-like hormone treatments, ultrasound
exams, and blood tests. Id. ¶¶ 67-68;
see also Pl.'s Mot. Prelim. Inj., Ex. 2, ECF No.
5 at 47. E.M. had no issue with J.S. “signing any
consent items related to using his sperm to inseminate the
eggs”-as he had during past treatment cycles at SGF-or
“making decisions regarding fertilized eggs and
embryos, ” but she wished to be the sole
“individual responsible for making all decisions
regarding treatment involving her body and decisions about
how many eggs to thaw during a cycle.” Compl.
¶¶ 69, 74; see also Def.'s Opp'n
Pl's Mot. Prelim. Inj. (“Def.'s
Opp'n”), Exs. M, N, and O, ECF Nos. 14-13 to 14-15.
Over
the course of the week that followed her January 15
appointment, E.M. attempted to discuss these questions with
various SGF employees. Through several conversations, E.M.
learned that the Consent to Thaw form had called for
J.S.'s signatures because SGF had classified him as
E.M.'s “partner” for purposes of all
treatments. See Compl. ¶ 84. SGF says that it
makes such a classification whenever “a couple (whether
married or non-married, same sex, or different sex) come[s]
through [its] doors for infertility treatments . . . unless
directed otherwise.” Decl. of Gilbert Mottla ¶ 16,
ECF No. 14-1. According to SGF, because “all treatments
are done to assist the patient and partner in creating a
child together, both the patient and partner are required to
consent to all infertility treatments, including all
treatments and procedures the female patient” undergoes
herself, “as well as sign all financial documents for
the infertility treatments.” Id. ¶ 21.
That is why J.S. was expected to consent to E.M.'s egg
thawing and related procedures, and why he was included
within E.M.'s “household” for purposes of the
discount program. See Id. ¶ 24.
If E.M.
wanted to opt out of this regime, she could, but there would
be consequences. She learned that if J.S. was not treated as
her “partner, ” he would be treated as a
“sperm donor” and subject to at least three
requirements that do not apply to partners. Compl. ¶ 85.
First, when, as in this case, the prospective sperm donor is
someone the female recipient knows, SGF “requires the
female and known donor to separately undergo psychological
counseling with a mental health provider” to make sure
that “they have considered the mental and emotional
ramifications of using or providing donor sperm to conceive a
child when the parties know each other but are not in a
relationship or do not plan to raise any child(ren)
together.” Mottla Decl. ¶ 18. Second, in known
donor cases, SGF “requires that the female and known
donor enter into a legal contract drafted by an
attorney” to ensure that the parties understand their
legal and financial rights. Id. And third, per FDA
regulations, sperm donors must provide their sperm to a sperm
bank, which then freezes and quarantines the sperm so that it
can undergo infectious disease screening. Id.;
Compl. ¶ 85. The FDA regulations generally exempt donors
who are sexually intimate with the female recipient, but
SGF's policy is, in its own words, “more
stringent”: SGF always requires that donor sperm be
frozen, quarantined, and screened, “regardless of
whether the recipient and the donor are sexually
intimate.” Mottla Decl. ¶ 18.
The
third of these requirements was particularly unappealing to
E.M. As she understood things, the quarantine process would
take about six months and result in thawed sperm that would
be medically inferior to fresh sperm. Compl. ¶¶
85-87. So the donor route was not exactly an ideal
alternative.
During
a January 18 phone call, however, Osborn informed E.M. that
she would need to choose between designating J.S. as a
partner or a donor and then agree to comply with SGF's
policies with respect to the chosen path. Mottla Decl. ¶
38; see also Compl. ¶ 101. Osborn said that if
E.M. wanted J.S. treated as her partner, SGF could offer her
a temporary courtesy discount on one egg thaw cycle, but she
would be ineligible for the Shared Help Discount Program, as
J.S. would be required to sign paperwork as a member of her
household and share financial responsibility for any
treatments. Compl. ¶ 101; Decl. of Barbara Osborn ¶
36, ECF No. 14-2. E.M. declined the courtesy discount and
instead asked to speak with ...