Whoever thought making a baby could be so hard? Luckily, the fertility journey isn’t meant to be traveled alone. Eloise Drane has helped hundreds of people build and grow their families over the last 15 years, and she’s ready to share her insider knowledge and expertise with you. So grab a seat and let’s talk fertility and alternative family building in the fertility cafe.
Hello, and welcome to Fertility Café podcast. I’m your host Eloise Drane. On today’s episode, we’re going to explore some of the more shocking and unfortunate mix-ups, malfunctions, and errors of judgment that have happened in the industry. We’ll discuss possible reasons why these things happen and how we can avoid them in the future. Let’s back up for a second to make sure we’re all on the same page. First off, what is third-party reproduction? Basically, it’s the term used for situations in which a third party or in other words, a donor or surrogate is needed to achieve pregnancy. This could be through the use of eggs, sperm or embryos that have been donated by an outside person to enable an individual or a couple to become pregnant or to become parents. Rather, there are a lot of different reasons why someone may need to use third-party reproduction. It’s often sought out by individuals or couples who struggle with infertility or who have had other medical conditions that make pregnancy unsafe or impossible. It also makes parenthood possible for same-sex couples and single individuals. The vast majority of the time everything goes according to plan.
The technological advances made in the field have been astounding over the past couple of decades, making parenthood more accessible for more people than ever before. And yet, things can still go off the rails at times, often in some very hard to predict ways. It’s these unexpected mishaps and mistakes that I want to focus on today. And here’s why. For every situation that goes wrong, there is a lesson to be learned and a narrative that is born. When someone finds themselves in a nightmare surrogacy situation, for example, it’s almost always because corners were cut somewhere along the way. Maybe the legal contract was so airtight, or the parties involved failed to have honest talks about heavy yet also important issues like termination of pregnancy for health reasons. Professionals inside the industry point to examples like these to caution others against cutting corners, we can use these stories to drive home the importance of doing your due diligence. But on the flip side, these stories are fodder for those who oppose third-party reproduction. There was very vocal opposition to the legal practice of surrogacy for example. And anytime one of these surrogacy gone wrong stories hit the news it bolsters their agenda that much more.
It makes me incredibly sad to think of the surrogacy opposition winning out because I can picture the measurable number of hopeful parents who would never have had the chance to have a baby of their own. That’s why I’m so outspoken and steadfast in my belief that third-party reproduction must be approached in the most ethical way possible. And it’s why I think it’s important to highlight the examples of how and why third-party reproduction goes wrong and what we can do to avoid these types of scenarios in the future. So the first third-party mishap I’d like to discuss is quite possibly one of the more heartbreaking. What happens when fertility clinics make mistakes that can literally destroy hopes and dreams for intended parents. To set the scene, let’s get a bird’ eye view of what most people experience when working through the third-party reproduction process with the fertility clinic. One of the most common means of achieving pregnancy via the third party is with the use of in vitro fertilization or IVF. In a nutshell, this process involves the joining of female and male sex cells, egg and sperm in a lab setting, they combine inside a petri dish in a controlled environment to form an embryo which is then transferred to the uterus of either the intended mother or a surrogate during a medical procedure.
Often rather than be transferred right away though the embryos are cryopreserved inside special freezer tanks. It’s quite common for people going through IVF to freeze embryos, eggs, or sperm so it can be stored for later usage, in case a round of IVF doesn’t take or in case they wish to have a child later in life. Obviously, when working with such delicate material, there are a lot of things that can go wrong along the way. Human error and equipment malfunction are some of the more common mistakes that can be made. Of course, reputable fertility clinics will make every effort to avoid mistakes in the IVF and storage process. After all, their reputations rely greatly on their rate of success and any major malfunction can easily turn it into a PR nightmare, all of which affects client satisfaction and all minutely their bottom line. So let’s talk for a minute about clinic standards and how someone goes about researching and choosing a clinic. When someone is first interested in pursuing pregnancy via third-party methods, they will usually start by researching possible clinics to work with. There are some great websites that track clinic success rates and other statistics, including the CDC fertility clinic report and the Society for Reproductive technology website or SART. After that most people will interview a handful of clinics to find one that meets their needs. It’s easy to take a clinic’s word at face value, but I always think it’s a good idea to dig a little deeper before committing to a clinic. There are a couple of key areas I always suggest intended parents ask about, the staff and the lab quality.
First, you’ll want to know about the qualifications and experience of the key team members. So who are the key players in a fertility clinic journey? First, there’s the reproductive endocrinologist. This is the doctor who will work most closely during the embryo creation stage. He or she will work with you to develop a plan to have a successful pregnancy. Your clinic may have more than one RE on staff. If that’s the case, find out what the protocol is if your particular doctor is unavailable. Are there any upcoming vacations when he or she will be out of the office? What happens if there’s an unexpected emergency that a doctor must attend to? Will you need to reschedule or will you be transferred to another doctor in the clinic for the time being? You may or may not choose to work with a Board Certified reproductive endocrinologist. Board certification in this field is seen as the gold standard in terms of knowledge and experience. To achieve this designation, a doctor must complete years of rigorous training. Let’s look at what this extra training includes. Reproductive endocrinology and infertility or REI is a subspecialty of Obstetrics and Gynecology. So after years of practicing as an OB-GYN, and after attaining board certification in obstetrics and gynecology, he or she continues training with an additional three-year fellowship in REI. Once the three-year fellowship is complete, the doctor takes a written and oral exam in order to earn his or her board certification. Then, in order to maintain board certification, the physician must demonstrate continued knowledge in the field by taking a written exam every six years. As you can see, if you want a doctor who has achieved the highest level of education and up-to-date training in the field, you’ll want to look for someone who is board-certified in REI.
One important caveat to take into consideration, many older physicians were among the trailblazers of their generation and aren’t board-certified not because they didn’t want to but because it wasn’t an option. So it’s not always a given that you should choose board certification over a doctor’s experience and reputation. You’ll want to take into account all factors including how communicative the doctor is and honestly how much you generally trust in the person. Never discount your gut feeling about a medical professional. The next clinic professional you should ask about is the embryologist. This is the person who makes the magic happen. This person is responsible for managing and monitoring the genetic material and he or she does the actual work of combining egg and sperm to create the embryos. The embryologist does the life-creating work behind the scenes. And while you may or may not get to meet, it’s clear that this person plays an absolutely pivotal role in your journey. You should feel empowered when selecting an IVF clinic and reviewing their lab to ask about the qualifications of the embryologist employed by your clinic. At a minimum, embryologists need a bachelor’s degree in biology or biomedicine. It’s quite common for them to have a master’s degree in reproductive science or clinical science. Some embryologists earn a Ph.D. or MD as well. Additionally, embryologists can seek certification from the American Board of Bioanalysis. After digging into the key team players at the fertility clinic you’re considering, it’s important to find out some details about the lab itself. Bear with me here because this is going to get a little bit technical but if you’re currently shopping for a clinic, I’d recommend you write some of these terms down to do some more research. Especially considering the clinic malfunctions we’re about to talk about. Trust me when I say that the quality of the lab and the technology they employ are super important to have a successful cycle.
Here are two questions I recommend asking. First, what type of incubators do they use? Big Box incubators can store lots of samples, which means someone will be opening that door more frequently. Each time the door is open the embryos are exposed to outside elements and temperature fluctuations. A desktop incubator is much smaller and therefore you may store only a small number of embryos, sometimes even in separate individual chambers. What oxygen level do they use to store embryos? It was previously thought that 20% was optimal. However, it’s since been proven that 5% is in fact the best level for embryos to thrive. If you find a clinic that is still operating at a 20% level, you can cross them off your list. What is their emergency protocol for loss of power, natural disaster, or fire? The American Society for Reproductive Medicine or ASRM, recommends that every fertility clinic develop an effective emergency plan that sets out in writing the actions to be taken by an IVF program during an emergency or natural disaster. Their committee recommendation outlines several specific action plans a clinic should have to protect cryopreserved materials, including things like having backup records in a separate location that detail the ownership of genetic tissue and topping off all liquid nitrogen tanks, and moving them to another location in advance of a foreseeable event like a hurricane.
You are well within your rights to ask about a clinic’s emergency plan and how it stacks up against the official ASRM recommendations. Any reputable clinic should be ready and willing to share their written plan with you because when the unthinkable happens, like a natural disaster hitting the clinic or samples being misidentified, there is so much more on the line time, money, hopes, and dreams. Pursuing IVF is a major life decision. Don’t shy away from asking lots of tough questions and walking away if you’re not satisfied with the answers. This all brings me to some of the tragic events that make all of this due diligence so important. It may be tempting to choose the clinics that are closest to you geographically, but it may prove worth the extra research and time to dig into details about how the clinic operates. Thankfully, clinic malfunctions are quite rare, but there have been some notable and unfortunate incidents that have occurred in fertility clinics in recent years. For example, a fertility clinic in Cleveland had a high-capacity freezer tank fail in 2018, which led to more than 4000 frozen embryos and eggs being destroyed. Evidently at the University Hospitals fertility clinic, the temperature began rising in the storage tank one Saturday night when no one was present at the clinic. The remote alarm system that was meant to alert staff of significant temperature changes had been shut off. Normally, it should have sent several repeat alerts to multiple staff members prompting them to return to the clinic to assist. None of that happened. According to an article by CNN, the tank in question had been experiencing difficulty for several weeks before the failure. There were problems with the automatic filling of liquid nitrogen into the tank so employees were having to fill the tank manually. The clinic said it had been working with the tank manufacturer on how to correct the problem. Apparently, they had begun to plan for how to move the genetic material from the malfunctioning tank to another one. But at the time of the loss, nothing had been moved yet. More than 950 families were affected with many patients suffering difficult losses.
One woman for example, had yet to have a child and tragically lost nine embryos in this horrible event. Several of the families filed lawsuits against the fertility clinic in an attempt to recoup some of the loss and the clinic itself has volunteered to refund and waive all storage fees and to provide tailored treatment moving forward. Ironically, that same weekend, a similar malfunction occurred at another fertility clinic in San Francisco, which led to another 1000 embryos and eggs being lost. How heartbreaking for those affected who not only underwent painful procedures, paid 1000s of dollars, but more importantly long to become pregnant with those embryos. Sadly, these were not the first incidents either.
Back in 2005, 60 patients who were storing this sperm before deploying overseas or undergoing chemotherapy treatments experienced the horrible loss of their sperm collections when the University of Florida health center had a mechanical issue with their storage tanks. A similar issue happened in 2012 at Northwestern Memorial Hospital destroying the sperm samples of 250 patients. As you could guess there have been many lawsuits involved in these situations. It was just recently announced that a jury awarded nearly $15 million to five people who lost eggs or embryos in San Francisco in 2018 for their pain, suffering, and emotional distress. Jurors found that a manufacturing defect was to blame for the tank malfunction and that the manufacturer had failed to adequately notify clinics or provide repairs. In this particular lawsuit, Chart Industries, the company that makes the tanks, were found to be 90% responsible and the fertility clinic 10% responsible.
Other than the strong recommendations of the American Society for Reproductive Medicine, it comes as a surprise to most people that fertility clinics and cryobank storage facilities aren’t actually regulated in any meaningful way. The recommendations of the ASRM are just that, recommendations, and facilities can opt into them or not. There’s really no one looking over their shoulders to see if they’re cutting any corners. There is talk inside the industry that lawsuits and judgments like the $15 million case that just came out of California will be a sort of a wake-up call for the fertility industry. Will there be any state or federal regulations that come from all of this? It’s hard to say, but it does drive home the point that it’s so important to ask as many questions as you want to dig as deep as you want and to walk away from any professional or facility that doesn’t welcome your questions with open arms. Was there any way to foresee what happened at these clinics, which by all accounts were well-respected facilities with good track records? Honestly, probably not.
In light of these instances, however, we can certainly exercise our power as consumers and demand more transparency about the processes and protections offered by fertility clinics. Aside from larger-scale equipment failures, other mix-ups and mishaps have certainly happened. Just recently, a pretty unbelievable yet true story hit the news about just that. A Utah couple Donna and Vanar Johnson thought it would be fun to take an at-home DNA test. When they got their results, they expected to see some interesting details about their family heritage and possibly connect with some long-lost relatives. Instead, they were shocked to see that their teenage son who had been conceived with the help of IVF was listed as father unknown. This didn’t make a lot of sense to the Johnsons, since they thought they had undergone IVF treatment using one of Donna’s eggs and Vanar’s sperm turns out the egg had accidentally been fertilized by someone else’s sperm in the lab. Obviously, this was unexpected news and after having a difficult conversation with their son, they started digging into what might have happened. Side note, thankfully, the parents had already talked to their son about the fact that he was a result of IVF so the groundwork had already been laid for an open discussion about what could have happened. Still, to suddenly learn that your father isn’t actually your biological father. Well, that’s a hard pill to swallow for anyone. After completing a second DNA test and doing some digging on ancestry websites. The Johnsons determined that a man named Devin McNeil was likely their son’s biological child, they reached out and after convincing Devin and his wife that this wasn’t some elaborate scam or hoax, they found out that both couples had indeed been at the University of Utah Center for Reproductive Medicine on the same day over a decade earlier.
There hasn’t been any clarity from the fertility clinic about how exactly this mix-up could have occurred and while both families are thankfully friendly, and willing to work the situation out among themselves, they both feel like they’ve gotten an inadequate response from the clinic. As of this recording, both families have filed lawsuits against the clinic and hope that legal action will inspire a productive discussion of how to prevent things like this from happening in the future. It’s worth noting that because of the lack of regulation, there’s not really any reporting system or way to track incidents like this on a wider scale. It’s hard to know how many more cases like this might be out there. So what lessons can we learn from this? Since we don’t have a clear idea of what exactly happened to cause the mix-up, it’s hard to tell. Clinics obviously need to have protocols in place to make sure all genetic material is properly labeled and identified. Most have multi-step processes to verify who each sample belongs to. Be sure to ask your clinic about what they do to make sure your samples and embryos are secure and identifiable. The mix-up, in this case, could have come down to a fluke, just simple human error. Perhaps it’s still an unacceptable and unfortunate outcome.
For parents who use IVF, don’t be afraid to ask for a DNA test so you can set your mind at ease. The more common at-home tests become the less likely it is that these mix-ups will go undetected. Personally, I would want to know as early as possible. Not only so my family and I could grapple with the emotional repercussions, but also because it’s much more likely that we could figure out what exactly went wrong a few months down the line rather than more than a decade later, as with the Johnsons. Accidental specimen mix-ups are one thing and they are absolutely unfortunate. But how would you feel to find out that a doctor purposefully misled you regarding whose genetic material was used, infuriated would be an understatement?
And yet another example of at-home DNA tests being a game-changer, dozens of stories have come to light in recent years about doctors using their own sperm to perform IVF with their patients, without their knowledge. Yes, you heard that right. A medical doctor entrusted with helping women achieve healthy pregnancies choose to use his own sperm without the patient’s knowledge or consent to create an embryo with her egg. It sounds like the plot of a Lifetime movie, doesn’t it? And yet it has happened so many times. In fact, things like this have been going on since the first-ever successful assisted reproduction procedure.
Let’s go way back in time for a minute because I think this story is worth telling, especially in comparison to modern-day ethics and errors of judgment. We’re going to talk about the story of the first-ever artificial insemination. Let me warn you, this is one that will make you cringe. Surgeon J. Marion Sims was the first doctor to perform artificial insemination procedures and for much of history, he was thought of as a pioneer in the field of gynecology. He opened the very first woman’s Health Center in 1855 in New York and was hailed as a champion for women’s reproductive care. Well, it gets pretty sketchy when you look below the surface. Turns out he made some extremely questionable ethical choices, including performing unnecessarily painful medical procedures on black enslaved women. His controversial practices re-examined by modern-day standards have caused medical schools and scholars to rethink his position as a great mind in the field. One of his main focuses of work was surrounding artificial insemination. He and others in the field theorized that it should be possible for a woman to become pregnant after having semen inserted into her uterus manually, and they were eventually proved to be right. It just took a lot of trial and error to get it right. All told, it said that Dr. Sims performed about 55 artificial insemination procedures on six different patients. Only one of these resulted in pregnancy, but then, unfortunately, ended in a miscarriage. Apparently, the failed attempts were attributed to the physician not taking a woman’s ovulation cycles into account. As we now know, timing is everything, in that regard.
About 30 years later, a physician by the name of William Pancoast from Philadelphia, continued the work begun by Dr. Sims. Dr. Pancoast became the first physician to have an artificial insemination procedure actually lead to a live birth. In 1884, he provided care for a 31-year-old patient that was seeking care due to her and her husband’s inability to conceive. After evaluation, Dr. Pancoast found that the husband’s low sperm count was to blame thought to be caused by previous infection, tests show that he had no viable sperm cells in order to achieve pregnancy. They attempted to treat the husband’s diagnosis with a series of medications and procedures but later determined that his seminal ducts were completely blocked and he would not be able to get his wife pregnant.
However, Dr. Pancoast chose not to disclose this important information to the patient and her husband. He rather took matters into his own hands. He brought his patient in for a procedure. He then put her under with the use of chloroform, with six medical students present with the use of a rubber syringe, he inseminated the patient with sperm of the most attractive medical student in that room, then packed her cervix with gauze. Apparently, they had all voted to determine who would be the lucky donor. She went on to deliver a healthy baby boy without knowing that her husband was not the biological father. Dr. Pancoast did eventually inform the patient’s husband of the situation, and they both agreed it was best not to tell the patient. Okay, let’s all allow our inner feminists to scream for a moment before moving on. There. I feel a little bit better now. This all remained a secret for 25 years until one of the six medical students that had been in the room that day wrote a letter that was published in the Medical World. When working on his letter he reached out to the boy, now a 25-year-old young man, who had been conceived with another medical student’s sperm to discuss the situation with him directly. At the time, this was all a bizarre and unexpected scenario, but one would assume that this is a thing of the past, right?
Well, let’s check the headlines. From a 2019 News article out of Grand Junction Colorado, a Colorado gynecologist is accused of using his own sperm to artificially inseminate women without their knowledge or consent. Nearly a dozen children were conceived between the 1970s and 1990s. The patients have been told the doctor would be using sperm from an anonymous donor instead, according to DNA test results, the doctor uses his own sperm without informing any of the patients or the resulting children. In Ottawa, Canada, Dr. Norman Barwin fathered at least 17 children with his patients without their knowledge or consent. The women involved here had turned to the doctor for help getting pregnant. They were also led to believe the sperm would come from an anonymous donor. He is currently facing a $13 million class-action lawsuit brought by hundreds of former patients and he has been stripped of his medical license. Oh, and there’s more. A 2020 New York Post article describes the career of Dr. Philip Peven of Detroit, Michigan over the course of his 40 years as an OB-GYN. It’s believed that he fathered hundreds of children. Somewhere as a legitimate anonymous donor, it seems back when he was in medical school, but many others seem to have been conceived via artificial insemination and later IVF with his patients, and no, it doesn’t seem that these patients knew their beloved doctor was also the “anonymous biological father of their children”.
Two of the women who found out they were biological children of the doctor actually tracked him down and spoke to him about it. At the time, he was 104 years old and living in a nursing facility. He readily admitted what he had done, saying that he was doing it as an act of service and necessity, so he could help women become pregnant who desperately wanted to do so. Sure, it sounds noble on the surface, I suppose, especially if you consider the limitations of the time period. And yet in at least one case, and probably several others, let’s be honest, he discarded the semen samples of known donors that the woman brought in. So these mothers and their children believed for years that a kind family friend was the biological father only to find out later that they had been deceived.
Clearly, there are so many layers of ethics to consider here. In the 1950s, 60s, 70s, were the doctors making the right choices by donating for their parents? At the time, no one could have imagined the ability to test DNA easily at home. So there was no fear of getting found out on the part of the doctors. Whether ethically justifiable or not, I lean towards not it’s a tough situation to put anyone in. The fall from this has been unfolding slowly but steadily for a while now, with certain states reacting to lawsuits and publicity stirred up by people who discovered an unexpected biological father. In Texas, it’s now considered sexual assault for someone to use unauthorized sperm, eggs, or embryos. Indiana and California have similar laws that make the use of unauthorized sperm a felony. Today any doctor who chooses to use his own sperm with the patient without consent is quite brazen, considering the likelihood of being found out due to DNA. While not out of the question. I’d say it’s far more likely that a modern-day mix-up would be less intentional and more accidental, but then again, anything is possible.
Alright, so far we’ve talked about clinic and equipment errors and malfunctions, accidental and intentional sperm and embryo mix-ups. The last case of third-party reproduction gone wrong that we’ll discuss today involves a surrogate in the odd case of something called superfetation. Imagine this scenario, you decide to pursue surrogacy in order to grow your family, you go through all of the proper steps, find the right match to carry the pregnancy, everything goes smooth, only to find out after birth, that the baby is actually the surrogate’s biological child. The stress and toll this would take on someone are unimaginable, not to mention the potential legal complications. Just to clarify, this is extremely rare. And I say that again. It’s rare, but it is possible. And it’s for exactly this reason that it is so important for surrogates to abstain from sexual intercourse for a period of time around the embryo transfer, actually pre-embryo transfer and post embryo transfer until there’s a confirmation of heartbeat.
Most agencies have strict rules and regulations on this but the surrogates must comply with or things can get a bit ugly from a legal standpoint. For instance, a few years back, a California woman set out on a surrogacy journey for a Chinese couple. At the six-week ultrasound, there were two hearts beating. Only one embryo had been transferred to the surrogate so as rare as it is the intended parents were informed that the embryo had split and they were expecting identical twins. Twin pregnancies can impose more risks and such but the pregnancy continued to go well and the surrogate successfully delivered both babies. Fast forward a couple of months after the delivery, the surrogate received the news that a DNA test revealed that one of the babies was actually her and her husband’s biological child. The intended parents in China have become suspicious when the children thought a little older and began to look nothing alike. So they requested the test that revealed the truth. The surrogate had become pregnant with her own child while also carrying that of the intended parents. Again, as I mentioned before, this is very rare, but can happen when a surrogate does not withhold from sexual intercourse during the specific time period. So she had the intended parents embryo implanted in her uterus and also had ovulated on her own, then likely had intercourse and became pregnant with the second embryo.
Situations like this are referred to as a superfetation in which there are two babies each with their own gestational age and in some cases, different sets of genetic parents. Superfetation can occur with both natural pregnancies and pregnancies achieved through IVF. Even though it’s very rare, it is still possible. The best thing for a surrogate to do is follow the rules and guidelines put in place by the fertility clinic and do not have intercourse for the allotted period of time. This is one of the many reasons why it’s extremely important that a well-written, clear contract is in place to protect everyone involved and that everyone fully understands all aspects of the contract. In this case, the surrogate and the parents ended up in a complex legal battle.
First, there was the question of who should have custody of the child. The surrogate wanted her biological child, the parents in China did not wish to raise a baby that wasn’t their own so the surrogacy agency ended up with custody for a bit before he went to his biological parents. Next, it became clear that the surrogate was expected to return the compensation she received for carrying twins. It’s standard practice in surrogacy arrangements to receive extra payment for the added risk and physical strain that comes with carrying multiples. In this case, she had received that extra payment, but the parents didn’t actually owe her for the costs related to the child who was her biological child. To add further complication, the surrogate, and her husband, the actual biological parents of the child had to engage in the legal battle to be named the legal parents of the baby because from the moment of birth per the surrogacy contract and the laws in California, the intended parents were named on the birth certificate. What a mess. This only drives home the importance of following those surrogacy contracts to the tee if it says abstain, you have to abstain. The consequences are super rare but extreme.
I want to end today’s episode with a note of encouragement. For every bizarre nightmare story about third-party reproduction gone wrong, there are hundreds, even 1000s more positive, literally life-changing stories that aren’t being told in the media. As with all aspects of life, becoming apparent via third-party reproduction can be unpredictable. The unexpected can happen. Someone can make a mistake, a poor judgment call, a slip-up, or an unethical decision and their choice can affect your life in a way you wish it wouldn’t. The same thing can be said for driving down the road and becoming a victim to another driver’s poor choices. Will that possibility stop you from driving your car ever again? I hope not. There is a risk with all we do. And if your heart is telling you that parenthood is the path for you, third-party reproduction, fertility treatments, IVF, surrogacy, donor eggs, donor sperm, are all wonderful options that we are lucky to have. Can things go wrong? Absolutely. But there are steps we can take to make sure we are protected, informed, and empowered to make our own medical decisions. I hope you found this discussion helpful as you were your next steps. We would love for you to rate us so if you haven’t yet, go to your listening platform of choice and subscribe, rate, and review this podcast. Five-star reviews are our favorite. You can follow the fertility cafe on its Instagram and Facebook channel at Family Inceptions. We’d also love you to share Fertility Café with friends and family members who would benefit from the information shared. Join us next week for another conversation on modern family building. Thank you so much for joining me today. Remember, love has no limits, neither should parenthood.
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