By Jon Hood
ConsumerAffairs.com

June 19, 2009
A group of New York mothers is suing the manufacturer of an infallibly accurate fetus gender test, claiming that the product doesn't live up to its hype.

The Baby Gender Mentor is advertised as giving 99.9% accurate results as early as five weeks into a mother's pregnancy.

According to the lawsuit, Acu-Gen Biolab, which manufactures the kit, referred to it in ads as the gold standard for prenatal gender detection. A website devoted to the test, www.babygendermentor.com, claims that the early prenatal gender detection test is based on established qPCR technology that, when properly administered by a qualified laboratory, has been proven highly accurate in detecting targeted DNA markers.

An attempt to click through to the site's Total Advantage section, which purports to explain why the test is a safe, quick, and easy way to find out the gender of your baby, resulted in an error message. It is unclear whether this page's absence is due to the lawsuit.

Barry Gainey, the plaintiffs' attorney, told the New York Post that Acu-Gen has already admitted that as many as 20% of consumers sought a refund from the company because their tests had given inaccurate results. It's not surprising that disgruntled new parents — already spending entire paychecks on diapers and disposable baby bottles — would be upset about a defective kit with a retail price of $275.

Expectant mothers complete the test by pricking their fingers with a provided lancet, and then mailing in three drops of blood to the manufacturer. The kit's procedures warn customers not to take the test in the vicinity of male humans, claiming that their presence could contaminate the results. Whether this will be raised by Acu-Gen as a defense — or whether it is even true — is one of many issues yet to be determined.

At least one mother suffered damages far overshadowing any economic loss.

One of the named plaintiffs used the kit during her second pregnancy, when she and her husband, already the parents of a son, hoped for a girl. The test confirmed their hopes, which were subsequently crushed when a sonogram reported that a second son was on the way after all. The couple has since abandoned their marriage, in part due to the stress and resentment caused by the erroneous test results.

Not the first time

This is not the first time the controversial test has raised eyebrows. In 2006, a number of customers claimed that Acu-Gen reneged on its 200% money-back guarantee, instead telling mothers that they needed to provide birth certificates, fingerprints, and other hard-to-produce evidence. The company also claimed that many of the affected mothers had conceived a vanishing twin — one that dies in the uterus and is essentially absorbed into the surviving fetus.

The test has also been criticized by a number of medical experts. In a 2006 interview with National Public Radio, Diana Bianchi, a fetal DNA expert at Tufts University, said that she was concerned whether the test is accurate or not. I think it's caveat emptor. Let the buyer beware. Some have also raised concerns that the test could be used for gender selection, leading mothers to terminate pregnancies unless their fetus was a certain gender.

The suit names as defendants both Acu-Gen and certain companies involved in the test's marketing. The action alleges counts in negligence and fraud.