What happens when IVF goes wrong? We asked a fertility lawyer

Every parent’s worst nightmare

With two life-altering IVF mix-ups occurring this year, people are questioning the legal, ethical, and emotional ramifications of the resulting pregnancies. Here's what the experts have to say.

For couples and singles embarking on the arduous journey of IVF, rarely is the process a simple transactional one. The result of decades of groundbreaking science, a sizeable amount of money and exhausting, unrelenting hope, a child born out of IVF is nothing short of a miracle. 

But the multi-step, time-consuming process, like any major feat of human innovation, is not completely immune to the possibility of human error. 

This year, one of the country’s leading IVF clinics has been responsible for not one, but two, serious embryo mix-ups. 

While both incidents vary in many ways, they share one common theme: a grave and irreversible mistake caused by human error. 

But while the scientists, doctors, and stakeholders responsible for the embryo bungles are no doubt filled with shame and distress over the life-altering effects the families involved now must live with, will they be held accountable in a court of law?

And who, of all parties involved, holds the legal parental rights for the children in question born? We asked experts in family law, surrogacy law and fertility to shed some light on recent events. 

Both embryo mix-ups resulted in healthy pregnancies and births. Image: Pixels

Earlier this year, Monash IVF revealed to the public that a patient in their Brisbane clinic was mistakenly implanted with another patient’s fertilised embryo, a process that resulted in a healthy pregnancy and birth. 

Unaware of the mix-up, the clinic and parties only realised the mistake when the patient whose embryo was used requested to transfer her remaining embryos to another facility, only to find one was missing. 

"Instead of finding the expected number of embryos, an additional embryo remained in storage for the birth parents," a Monash IVF spokesperson said at the time in a statement.

"[An] investigation confirmed that an embryo from a different patient had previously been incorrectly thawed and transferred to the birth parents, which resulted in the birth of a child."

The fertility provider has commissioned an independent investigation to determine how both mix-ups happened. Image: iStock

So, who has legal parentage over the resulting child?

In short, there is no simple answer for the parties involved in both Monash IVF mix-ups. largely due to the fact that there is essentially no legal precedent in Australia for embryo-related cases of this nature. 

"As far as I'm aware, this particular case is unique to Australia but is not unique to the rest of the world," Family creation lawyer Sarah Jefford, who specialises in surrogacy and donor conception law, tells the ABC.

"We have a few other cases [globally] where the wrong embryo has been transferred, resulting in the birth of a child."

In the event that a person is accidentally implanted with an embryo that they share no biological likeness with, the legal parentage of the resulting child would depend heavily on a few complex factors. 

What happens after someone is mistakenly implanted with the wrong embryo? Image: Pexels

Firstly, given the uniqueness of the scenario, the ethical framework of the situation could need to be examined by experts, whereby the emotional bonds between the birth parents and the child, and the child’s well-being are taken into account.

Additionally, the legal parentage of the resulting child may be influenced by specific laws and regulations in the jurisdiction in which they are born. 

In Australia, the current legislation states that the birth mother is presumed to be the legal parent, unless otherwise determined in court. 

What this means is that, theoretically, an embryo accidentally placed in the body of a woman to be carried to term and birthed is legally considered to be her child, despite being someone else’s biologically. 

In Australia, the current legislation states that the birth mother is presumed to be the legal parent. Image: Pexels

Of course, all parties involved in a situation such as this, from the birth parents to the biological parents, have every right to pursue legal action against the fertility provider, either to seek financial compensation or to potentially challenge the legal parentage of the resulting child. 

The second IVF bungle, revealed earlier this week, was slightly different in nature, but nonetheless serious in its implications. 

“This Monash IVF incident relates to a same-sex couple. One of the parties wanted to carry the child, but instead of transferring that partner’s embryo, the clinic transferred the other party’s embryo,” explains expert fertility lawyer and founder of Kalpaxis Legal, Cassandra Kalpaxis. 

“In those circumstances, the person whose embryo it was is the biological parent of the child – and also the birth parent. It’s not like a surrogacy matter where the embryo doesn’t align with the birth mother. Here, the birth mother is still the biological parent. 

With two strikes against its name, it’s only natural for prospective parents to reconsider the expensive and emotionally and physically taxing process of IVF. Image: Pexels

Should people reconsider IVF?

With two strikes against its name, it’s only natural for prospective parents to reconsider whether the expensive and emotionally and physically taxing process of IVF is right for them. But according to fertility specialist and associate professor Alex Polyakov, these extremely rare scenarios should not be considered the norm.

"I think it's important to stress that this is a nightmare scenario for a fertility centre, and there are very robust protocols when we handle either sperm, eggs or embryos, and they are in place in all labs in Australia," he tells the ABC.

"It is almost impossible for this to happen, but just like flying in a plane, it is safe, and occasionally, a plane could crash due to human error, or a number of human errors."

"It's not a systemic issue … it's an isolated incident, a very unfortunate one, clearly," he concludes.

As for Monash IVF, in the wake of a terrible few months of publicity, the company’s CEO has announced his resignation this week, while the fertility provider has commissioned an independent investigation to determine how both mix-ups happened. 

Originally published as What happens when IVF goes wrong? We asked a fertility lawyer