Qld fertility giant sued for millions over baby swap scandal
A Queensland family say they have been destroyed, as they allege the wrong sperm was used to conceive two of their sons through IVF. Now, they’re suing the state’s leading fertility clinic, and they fear other parents could have been caught up in similar blunders.
QLD News
Don't miss out on the headlines from QLD News. Followed categories will be added to My News.
Queensland’s leading fertility clinic and star of a national prime time TV show is at the centre of a landmark multimillion-dollar baby swap scandal, with a devastated couple suing the IVF clinic for using the wrong sperm to conceive two of their sons.
The Supreme Court legal action, believed to be the first personal damages claim of its kind in Australia, will send shockwaves through the lucrative fertility industry and every family that has used IVF to conceive their children.
Anastasia and Lexie Gunn are suing Queensland Fertility Group – the IVF juggernaut behind Channel 9’s popular series Big Miracles – for using the wrong sperm to conceive their two youngest sons, both of whom suffer serious health conditions.
The women say their family has been destroyed having falsely believed for years their three sons were biological siblings.
They say they now have no idea who is the actual donor father.
And they fear other parents could have been caught up in an epic blunder and could be raising children that are not their own.
It comes as The Courier-Mail can confirm that at least one other family is planning to take legal action against QFG over allegations where the wrong sperm was used.
The Gunns launched legal action after a series of genetic and DNA tests showed their three boys, all conceived at the prestigious clinic, did not have the same father.
They were compelled to get the expensive DNA tests – conducted by DNA Queensland, which are used and approved by the state’s court system – after their two youngest sons developed the debilitating health problems.
The multimillion-dollar claim includes damages relating to breach of contract, wrongful birth, negligence and loss of genetic affinity – believed to be an Australian-first.
At the time the couple conceived their two youngest sons, Jake and Kai, Anastasia and Lexie had insisted QFG use the same sperm donor – known as 227 – that was used to conceive their oldest son Seth. They paid QFG to reserve five ampoules of donor 227 for the purpose of creating their dream family.
For years Seth, 16, Jake, 10, and Kai, 8, were raised as genetic siblings and told they were all sons of donor 227 who had a top-notch profile and was carefully selected by the parents.
The chosen donor was an athletic, blue-eyed blond, well-educated professional who was in excellent health and agreed on contact once the children turned 18.
“Those findings blew up our world. We immediately realised that our two younger sons were not from donor 227 as we had thought all those years and suddenly there was a reason for their illnesses,’’ Anastasia said.
“Science doesn’t lie. When I received the results of the DNA tests I was at work. I’m a theatre nurse. I was so blown away that I started to cry uncontrollably and had to be comforted by the consultant anaesthetist. I knew within seconds there had been a terrible mistake at the clinic.
“I phoned Lexie and she was so shocked she started to vomit. The life we thought we were living was now in question. It was everything to us that they grew up as biological siblings, that they had that important family connection.’’
The parents say the foundation of the brothers’ lives has been ripped from under them and they are struggling to accept they are not biologically related.
“The boys always joked around about their biological father. It was never a secret and they grew up safe in the knowledge that they were true brothers, felt a family belonging and had a connection for life. When we told them about the DNA tests they were inconsolable,” Anastasia said.
The DNA tests did confirm that Jake and Kai are full siblings and are the maternal sons of Lexie
However, the findings have left the family uncertain as to who is the actual father of Jake and Kai. There is no clear answer as to whether they were fathered by another donor or by a sample taken from another couple attending the clinic on the same day.
But the fertility giant QFG stands firm on their claim that donor 227’s sperm was used in the conception of all three boys.
The Courier-Mail on Friday approached QFG for a response to the claim but they said the group was unable to comment because the matter was before the courts. “We are confident in the integrity of our programs, systems and processes,’’ QFG managing director Melanie Sibson said in a short statement.
According to court documents, the fertilisation of the eggs to create the couple’s embryos was carried out at QFG’s Benowa clinic on the Gold Coast in July 2012. A total of six embryos were created with what was believed to be 227’s sperm. The embryos were frozen and stored by QFG.
“QFG have provided medical records that say they used donor 227 on the day that both Jake and Kai were conceived, which to us means either their sperm is labelled incorrectly or they have switched it with someone else’s on the day,” Anastasia said.
“There were many other families having embryos made on the same day that we were. This isn’t just about our children and us. What if they switched our donor sperm with sperm from one of those couples and there is a man out there raising children that aren’t even his?” she said. The court documents allege the wrong sperm was used to create the Gunns’ embryos and that the origin of the sperm is unknown.
“The plaintiffs … have given birth to children who were unintended and wrongfully conceived,’’ according the claim.
It further states QFG and the treating doctor, who is also being sued, failed to “take reasonable steps to ensure that the correct donor sperm was used and failed to inform the Gunns as to the risk of being impregnated with an incorrectly fertilised embryo”.
“The defendants failed to devise, maintain and enforce a system for the tracking, reservation, storage and use of sperm in Assisted Reproductive Treatment (ART) services which ensured that at all times the correct sperm was used, failed to take reasonable steps to ensure that the correct donor sperm was used in fertilisation and failed to inform or adequately inform the plaintiff as to the risks of being impregnated with an incorrectly fertilised embryo”.
Anastasia and Lexie have been so shaken by the DNA findings they are urging families who have had babies through QFG to go through their own genetic testing to be certain no mistakes have been made and children were not created with the wrong gametes.
“What if they used the sperm of a man who had frozen his sperm before having cancer treatment and it was his last chance to have biological children? Or just the sperm of a heterosexual couple putting their faith in a reputable company like we did?
I think everyone who has ever used QFG to make their babies should DNA test their children to make sure it was done correctly,” she said.
Anastasia and Lexie began their relationship early in 2011 and knew soon after they wanted to extend their family.
According to court documents two things were critical: that all their children were biologically related and were conceived using Donor 227’s sperm.
In August of that same year, the couple contacted QFG requesting they reserve five ampoules of 227’s sperm. They were advised the ampoules had been located and reserved for their use.
In May 2012, they began their IVF journey consulting with a doctor at QFG to start the process. On May 22, both women gave their consent to the treatment.
Then in June, Anastasia informed QFG that “it was essential that all future children be biologically related to Seth”, court documents state.
Seth Gunn was born in 2007 with no health concerns and remains a healthy teenager. He was carried by Anastasia. Lexie gave birth to Jake in 2013 and he has had health issues from birth.
He has been diagnosed with Ehlers-Danlos Syndrome hypermobile type, acid reflux, chronic constipation, phimosis and has chronic long term pain.
He will need medical intervention his whole life.
Anastasia carried Kai, using Lexie’s egg. He was born in 2015 and has been diagnosed with Joint Hypermobility Syndrome with mechanical pains, pes plano-valgus and chronic constipation.
Lexie has had to give up full time work to look after the needs of the sick boys.
As part of the claim, the Gunns are also suing medical insurance company Avant Insurance for the actions of now deceased clinical geneticist Dr Stephen Withers.
The Gunns attended a genetic counselling appointment with Dr Withers in October 2012 when Lexie was eight weeks pregnant with Jake. This was for the geneticist to provide information about the risks of any children having a genetic disorder or disability.
The Gunns sought out this information to decide whether to continue or terminate the pregnancy. The Supreme Court documents claim the Gunns were not informed of the risk of disability.
“At no time did Dr Withers, or any other treating physician, advise the plaintiffs that there was a risk of children conceived using the embryos suffering from Ehlers’ Danlos Syndrome or any other serious genetic disorder or disability,” the documents state.
The court documents further allege that Dr Withers had written to the doctor treating the women at QFG and said: “As a complete aside and in something which is totally unrelated there is, in fact, a paternal cousin who has a child with what sounds almost certainly like Ehlers’ Danlos Type 4. This is the severe scarring haemorrhagic form of the condition,’’ Dr Withers allegedly wrote to the doctor.
But in his report to the Gunns, on that same day, he “failed to mention the risk of Ehlers’ Danlos Syndrome”, according to the documents.
When Anastasia and Lexie told their children they did not all have the same father they sobbed.
“We had to tell them two days before Christmas that they don’t have the same biological father when we were taking them for yet another DNA test and it broke their hearts,’’ Anastasia said.
“I will never recover from the memory of them crying and hugging each other. It haunts me. Our middle child asked us ‘Is that why I’m sick? Because they used the wrong sperm?’ and we had to tell him yes, it is.”
“He was so sad and so angry. Every time I see him limp, every time he cries in the night from the pain in his joints, every time he is left out from sports and fun activities where he might get even more injured I am more and more furious.
“We saw his specialist the other day where we had to plan ahead for the major surgeries he will need over his lifetime because of his medical condition.”
Lexie said that as a family the Gunns would always point out the number 227 when they saw it somewhere and felt bonded to that number.
“The children have described this experience to me that it is as if someone has stolen their brother,” she said. “The whole family lineage is changed. They won’t even know who their own siblings are, so how will they go about having relationships when they’re adults? Our kids were meant to be able to find out their donor’s identity at 18 – that was part of the agreement with the clinic. Now we don’t know if they will ever find out who their biological father is, what his physical features are.
“All I’ve wanted this whole time is for our children to be biologically related and see themselves in each other.” Lexie said.
Anastasia, who has worked as a registered nurse in critical care for 25 years, says she is appalled that fertility clinics are not government regulated.
“When I first told QFG my boys had different fathers and demanded an explanation they just refused to answer,” she said.
“I couldn’t believe they would just ignore something so important, so I wrote to the Reproduction Technology Accreditation Committee (RTAC) thinking they would force QFG to investigate and come up with an answer.
“RTAC is meant to make sure clinics are doing the right thing and they are the group that gives out the licences to the clinics. That licence means the clinic can receive Medicare funding – taxpayer dollars worth millions.
“As a theatre nurse I work under so many layers of policy, protocol, regulation and legislation. I know that if I make a mistake or break the rules I will be held accountable for what I have done. I assumed the IVF industry was the same – that they had rules they must follow.
“Instead I have found out that there are no state laws regulating IVF in Queensland at all.
“How are patients meant to be protected? This needs to change, the government needs to take charge.”
TIMELINE
2005 Anastasia went to QFG for IVF with former partner
2006 Anastasia became pregnant with Seth using donor 227
August 2011 Anastasia and new partner Lexie returned to QFG wanting to see if they could use donor 227 to conceive a biological sibling. Lexie was to carry the baby.
April 2012 Couple pay fee to store the semen of donor 227.
May 2012 Couple discuss transport arrangements of donation from Brisbane to QFG Gold Coast.
May 2012 Email arrives from QFG to say Lexie could not use donor 227 as he had reached his family limit and could only be used by Anastasia.
June 2012 Anastasia replied that she had a new partner and that further children would be raised as Seth’s sibling and not outside the family. She reinforced that it was vital that the children would be biologically linked.
June 2012 QFG responds to say manager had approved Lexie’s use of donor 227
July 2012 Egg collection occurred
September 2012 Lexie pregnant with Jake
May 2013 Jake is born
October 2014 Anastasia pregnant with Kai
June 2015 Kai is born
August 2020 Jake is diagnosed with Ehlers-Danlos Syndrome hypermobility type
May 2021 Parents notify QFG of Jake’s serious health condition
June 2021 QFG confirm that his father was donor 227
July 2022 Ancestry DNA show Kai and Jake are full siblings but Seth is not All three boys do not share any common DNA
July 2022 Parents do additional testing with MyHeritage. Again same results
December 2022 Family attend DNAQ for legal testing tests used by the Queensland Government
July 2023 Anastasia and Lexie file multimillion dollar a statement of claim against QFG
Police seek help to find missing toddler
Police are seeking public help to find a two-year-old girl missing from Bundamba since about 1.30pm on Saturday.
Read more
Native title myths, the Voice and THAT date: Finding the right way for a fair share
You may not know his name, but Selwyn Button’s journey from a childhood playing footy in Cherbourg to the halls of Harvard University - with a few stops in between - is fascinating and inspires his next role helping Indigenous Australians to a prosperous future. THIS IS HIGH STEAKS
Read more