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E.M. v. Shady Grove Reproductive Science Center P.C.

United States District Court, District of Columbia

May 7, 2019

E.M., Plaintiff,


          Rudolph Contreras, United States District Judge.

         Denying Plaintiff's Motion for Preliminary Injunction


         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.


         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 ...

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