In Vitro Fertilisation (IVF) first resulted in a successful live birth on 25 July 1978 when Ms Louise Brown was born in a Manchester hospital in the UK.1 Since Ms Brown’s birth, IVF has advanced rapidly with more than 13 million children reported as having been conceived through IVF processes.2 While this progress is exciting, recent events in Australia have drawn attention to the potential for complications to arise during the IVF process, one of the most significant being the transfer of an incorrect embryo into a receiving patient. This article discusses IVF embryo transfer errors and legal processes which may follow.
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 34 No 4.
This article will first examine what IVF is and how it operates. Second, it will discuss previously reported embryo transfer errors within other international jurisdictions and the legal processes that followed. Third, consideration will be given to questions of causation and damage in claims against providers, with reference to the Singaporean case of ACB v Thomson Medical Pte Ltd.3 Finally, the article will discuss the legal issues arising out of embryo transfer errors and consider how Australian courts are likely to approach these difficult questions.
In Vitro Fertilisation
IVF is not a single procedure resulting in conception, but rather a multi-staged process by which patients receive assistance to conceive.4 The IVF process begins with ovarian stimulation to promote the development of eggs, or ova, in a female patient.5 During this stage, the patient receives fertility medications over a period of time to stimulate the ovaries and cause production of eggs which are then retrieved in a separate procedure, known as egg retrieval.6 In the same stage, sperm is obtained from a male patient to fertilise the eggs. Once both sperm and eggs have been procured, the eggs will be fertilised by the sperm in a laboratory resulting in the creation of an embryo or multiple embryos.7
While practices vary between countries, in Australia, the current practice is to limit the number of embryos transferred to one or two, in order to reduce the risk of multiple births.8 The embryo or embryos considered to be of highest quality are identified within the laboratory and transferred into the female patient’s uterus during a further procedure (embryo transfer). Where multiple embryos have been created, any surplus embryos are cryopreserved, or frozen, and stored for potential use in future IVF rounds. The receiving female patient is then observed to see if a successful pregnancy and live birth result.9 Subsequently, if the woman wishes to use one of the surplus embryos, the embryo is retrieved from storage and utilised in a further embryo transfer.
Reported embryo transfer errors
Rarely, errors in the storage, handling and transfer of embryos have resulted in the transfer of the wrong embryo into a patient.
Some reported examples, and the legal processes which followed, are outlined below.
Perry-Rogers v Fasano - 1998 US
A relatively early US case examined parental and custody issues in the context of the birth of mixed-race twin boys in the late 1990s.10 In April 1998, Deborah Perry-Rogers and Robert Rogers began an IVF process in New York. Due to a mix-up, embryos created entirely from the Rogers’ genetic material were mistakenly implanted into the uterus of Donna Fasano, along with embryos created from the genetic material of Donna and her husband, Richard Fasano. Both couples were informed of the error in May 1998 and advised to undergo DNA and amniocentesis tests; however, the Fasanos were unresponsive to the Rogers’ attempts to contact them.
In December 1998, Donna Fasano gave birth to two male infants of different races: a white child which was the Fasanos’ biological child, and a black child, later confirmed through DNA testing to be the Rogers’ biological child, now named Akeil. The Fasanos did not take immediate action regarding the clinic’s error, and the Rogers initiated legal proceedings upon discovering that one of the children born to Donna Fasano could be theirs.
The case raised several issues, including the determination of the legal status of genetic versus gestational parents and the standing of the gestational mother to seek visitation rights. Whilst the original action included allegations of medical malpractice and breach of contract against the clinic and doctors involved, this aspect was not pursued in the reported decisions.
The New York Supreme Court, Appellate Division (the Court) in determining questions of parenthood, acknowledged that the advent of IVF technology has created complex legal dilemmas by separating the genetic and gestational roles of motherhood. Historically, the 'natural mother' was considered to be the woman who conceived and bore the child, however reproductive technology has made it possible for these roles to be divided between two women. The Court referred to prior surrogacy cases11 which applied an 'intent' analysis to determine parental rights, and noted that this would support a custody award favouring the Rogers, as the genetic parents who intended to create and raise the child. However, the court also acknowledged that a gestational mother may possess legal rights even though she is a 'genetic stranger' to the child.12
Ultimately, and based on the particular facts of the case, the court determined that the gestational mother, Donna Fasano, could not claim parental status or visitation rights given that any bond formed between Akeil and the Fasanos was the result of the Fasanos’ failure to act promptly upon learning of the clinic’s error.13 The Court emphasised that it was not making a general determination that the rights of genetic parents would prevail over gestational parents, and that the situation was one of considerable complexity.14 Notwithstanding this, subsequent US cases of embryo errors have resolved in favour of genetic parents, suggesting that some form of general principle has unwittingly emerged.15
It was reported in 2004 that both the Rogers and Fasano families went on to sue the fertility clinic, with each action resolving for an 'undisclosed sum' in compensation.16
Assuta IVF clinic of Israel
Israeli courts have grappled with similar issues in recent years, reaching a different conclusion. In 2022, a patient (Ms C) and her partner (Mr D) underwent IVF treatment at the Assuta Medical Centre in Israel (Assuta).17 Following success in the prior IVF stages, an embryo was transferred to Ms C resulting in a pregnancy.18 In the course of medical intervention and genetic testing during pregnancy, it was discovered that that the embryo implanted into Ms C was not genetically related to Ms C or her partner. Ms C completed the pregnancy term and gave birth to a female baby.19
After the child was born, another couple was identified as genetically related to the child. The genetic parents sought legal recognition of parenthood and custody, but were reportedly denied contact while Ms C and Mr D continued to raise the child. The case progressed through the courts with the Rishon Lezion Family Court ruling in favour of the genetic parents as legal parents of the child and then the District Court of Israel overturning this decision and recognising the gestational parents (Ms C and Mr D) as the legal parents.
The case reached the Supreme Court of Israel, (Supreme Court), when the child was over 2 years old. The Supreme Court held that under Israeli law, the woman giving birth to a child is the legal mother, and thus gestation prevails over genetics.20 This opinion was informed by existing legal frameworks for surrogacy and gamete donation, which do not consider the genetic parent to be the legal parent. The majority judgment also considered the best interests of the child to be an important factor, noting that, by the time of judgment, Ms C and Mr D had raised and cared for the child for over 2 years.21
The dissenting judgment in the Supreme Court echoed concepts from the US judgment in Perry-Rogers v Fasano, urging the Supreme Court to focus on intent and distinguishing the situation from surrogacy law where all parties agree in advance who the parents will be.22 The dissenting judge also noted that the genetic parents had been denied access to the child from the outset through no fault of their own, and that the ruling in favour of the gestational parents would exacerbate that wrong rather than addressing it.23
In October 2025, the Israeli Ministry of Health announced that it was reviewing the operations of Assuta as a result of this embryo mix-up incident and had revoked the licences of the head of the IVF laboratory and the embryologist involved. It described failures in patient identification protocols, adherence to embryologists’ guidelines and management of medical records.24 Whilst several media outlets reported plans for the impacted couples to sue Assuta for damages,25 there have been no reported decisions in this regard, suggesting that matters may have resolved out of court.
Monash IVF Australia - 2025
In 2025, it was reported in Australian media that a woman gave birth to a stranger’s baby after receiving the wrong embryo at Monash IVF.26 According to reports, in 2024 a patient (Ms A) underwent IVF treatment from the Monash IVF Clinic (Monash) to assist conception with her husband. Ms A successfully undertook each of the stages of IVF and had an embryo implanted into her uterus in August 2024 resulting in a successful pregnancy.27
Six months into Ms A’s term, she was notified by Monash that the embryo transferred to her was not hers and was the genetic material of another couple.28 Ms A subsequently gave birth to the child. Monash disclosed the incident to the stock market, apologised to the birth mother and genetic mother and commissioned an independent investigation.29
In the course of investigating the error, Monash conceded that the incorrect transfer was attributable to human error.30 It explained that an embryo from a different patient had been incorrectly thawed and transferred to Ms A.31
In March 2026 it was reported that Monash had entered into financial settlement agreements with the families involved in the error for undisclosed amounts.32 In a statement issued by Monash, it said that it had worked closely with the regulator and undertaken steps to strengthen safety systems and cultures. It also confirmed that its insurers had extended indemnity for the claims.33
IVF Life Inc D/B/A Fertility Centre of Orlando
In January 2026, a Florida couple filed a lawsuit against a fertility clinic alleging that they had recently given birth to a child that was not genetically theirs, following implantation of an incorrect embryo.34 It was reported that the couple, Mr Steven Mills (Mr Mills) and Ms Tiffany Score (Ms Score), had engaged the Orlando IVF Life clinic (IVF Life) to assist with conception of a child, placing three viable embryos in cryogenic storage in 2020.35 In April 2025, an embryo was implanted into Ms Score’s uterus resulting in a successful pregnancy.36
On 11 December 2025, Ms Score gave birth to a female baby. Following birth, Ms Score and Mr Mills identified that their baby displayed the physical appearance of a non-Caucasian child despite both being racially Caucasian.37 Genetic testing was later performed and revealed the baby had no genetic relation to either Ms Score or Mr Mills.38
The lawsuit brought by Ms Score and Mr Mills sought emergency orders directed at identifying and reuniting the baby with her genetic parents, and establishing what occurred with the plaintiffs’ embryos and informing them whether they may have a genetic child. The proceeding expressly reserved jurisdiction to award damages.39
Claims against providers - what is the loss?
In each of the above cases, the prospect of lawsuits against IVF providers arose. However, these have not produced reported decisions, potentially due to a tendency to settle such claims out of court and such settlements being subject to confidentiality agreements. There is accordingly little guidance available regarding how courts would approach such claims. A Singaporean case, ACB v Thomson Pte Ltd,40 addressed a slightly different scenario, an error of fertilisation, but is instructive in relation to potential claims against providers given the Singapore Court of Appeal’s analysis of causation and heads of damage.
ACB v Thomson Medical Pte Ltd
ACB concerned a Singaporean Woman (Ms E) and her husband, a German man of Caucasian descent (Mr F).41 Prior to the incidents in question, Ms E and Mr F successfully undertook IVF treatment with Thomson Medical (Thomson), leading to the birth of their first child in 2007.42 Following this initial success, Ms E and Mr F re-engaged Thomson to undertake IVF in 2010.43 The 2010 IVF treatment resulted in the birth of a second child.44
Upon delivery, Ms E and Mr F identified that their child had a different skin tone and hair colour from their first child. Investigations revealed the second child had no DNA match to Mr F.45 Rather, testing indicated that Ms E’s egg had been fertilised with the sperm of an unknown Indian male.46
Following the error, Ms E initiated proceedings against Thomson in negligence.47 She claimed that the fertilisation error resulted in the birth of a child that was not genetically her husband’s. She sought damages for pain and suffering, mental distress and upkeep costs. Thomson admitted that it was liable to pay damages for pain, suffering and mental distress but contested the claim for upkeep costs.
Initially, Ms E’s claim for upkeep costs was unsuccessful causing her to appeal.48 The Singapore Court of Appeal, (Court of Appeal), first addressed the matter of causation.49 It acknowledged the primary judgment which found that Ms E and Mr F had wanted a second child all along and would accordingly have spent the same amount of money on a child regardless.50 However, the Court of Appeal rejected this view and said that that consideration must be given to the 'purpose' for which expenses were (and would have been) incurred,51 explaining as follows:
Despite rejecting causation as the relevant basis, the Court of Appeal ultimately held that Ms E was not entitled to an award of damages for upkeep costs,53 finding that Ms E’s claim for upkeep was 'not legally cognisable' as she could not avoid the fundamental duty that is caring for and maintaining her child, which is an obligation at the heart of parenthood.54 The Court of Appeal explained:
The Court of Appeal went on to consider whether Ms E was entitled to damages for loss of autonomy, ultimately determining that she was not. It described autonomy as an unsettled area incapable of forming the grounds for a claim.56 It noted that autonomy is the subject of rigorous theoretical and conceptual disagreement as well as controversy,57 turning on questions of political philosophy which are not for a court to determine.58 Further, the Court of Appeal said that, even if the concept of a loss of autonomy were workable, it would not fit coherently with the requirement for damage in negligence claims, given that many infringements upon autonomy in fact result in a person being better off.59
As an alternative to a loss of autonomy, the Court of Appeal was prepared to make an award for loss of 'genetic affinity', explaining as follows:
In view of the matters raised above, the Court of Appeal awarded Ms E damages for loss of genetic affinity which, after consideration, it quantified as 30% of the financial costs of raising her second child.61
Legal issues in Australia
Australian courts have not yet been called upon to determine these questions. However, recently reported issues in Australian clinics, combined with the increasing prevalence of IVF, suggest that perhaps it’s just a matter of time.
In the event of an embryo mix-up, questions of parentage, custody and compensation will arise for the impacted parties. The 2025 Monash error has not, to date, given rise to publicly reported court processes and the reported settlements with Monash in March 2026 suggest that, at least insofar as claims against Monash for compensation are concerned, this is unlikely to occur.
Consideration is given below as to how Australian courts, if confronted with an IVF embryo error case, may approach the relevant issues.
Parentage and custody
In Australia, legal parenthood is generally established at birth, through court order or through legal presumption.62 The birth parents named on a child’s birth certificate are by default legally recognised as the parents, although this may be altered through a legal adoption or surrogacy process.63
The circumstances of an embryo mix up create a novel situation where the birth mother bears no genetic relation to the child, and the genetic parents did not consent to the arrangement. Determining the child’s legal status and the question of who has parental rights and responsibilities may accordingly require court intervention. This would fall for consideration by the Family Court of Australia, a jurisdiction which is generally guided by the best interests of the child as its paramount consideration,64 although commentators have queried the appropriateness of applying the 'best interests' test to an IVF dispute given the subjectivity, likely lack of evidence regarding either party’s parenting and the high potential for prejudice.65
Such family law proceedings may be protracted, involve high levels of distress and result in one or both parties feeling aggrieved and financially worse off. This paves the way for potential claims against the IVF provider, whose error created the situation.
Civil claims against providers
In Australia, IVF providers owe a duty of care to their patients to exercise reasonable care and skill in the provision of IVF treatment and related services.66 The scope of the duty is informed by industry standards and guidelines, as well as peer professional opinion where relevant.67
Where an error occurs in respect of the creation, storage or transfer of an embryo, a failure in the standard of care is likely to be established, giving rise to a potential claim in negligence by the impacted patients. Concurrent claims for breach of contract or under Australian Consumer Law may also arise.
One potential scenario is a claim by the parents who are awarded custody and parental responsibility for a child who is not genetically theirs. In such claims, as in the Singapore case referred to above, complexity arises in respect of questions of causation of loss and the recoverable heads of damage. The main objective when awarding damages is to place a person wronged in the position they would have been in had the wrong not occurred68 although that is not straightforward in this situation. Where loss in an embryo mix up case is claimed with reference to the costs of raising the child, causation issues arise on an application of a 'but for' type test.69 Unlike wrongful conception cases, such as Cattanach v Melchior,70 the counterfactual scenario involves - all going to plan - the expenditure of similar if not identical costs on an unknown 'alternative' child. It is difficult to discern any legal authority in Australia which would support the Singaporean Court of Appeal’s emphasis on the 'purpose' for which such upkeep costs are incurred.
It is relevant to note that several Australian states enacted legislation71 precluding or limiting claims for upkeep costs in the wake of the High Court decision in Cattanach v Melchior. However, none of these statutory provisions would preclude a court from awarding damages for 'loss of genetic affinity' as the Singaporean Court of Appeal did, should the Court consider it appropriate to do so.
The other potential scenario is a claim by the 'losing party' in the parentage proceedings; that is, the parents - be they genetic or gestational 'parent' - who are determined not to have legal parental status. While the lack of parental rights and responsibilities may result in a net financial gain (at least in the first instance), their goal of creating a family, which was the very purpose for undergoing IVF treatment, remains unrealised. Quantification of such a significant loss is without legal precedent and is likely to be challenging. While costs of future fertility treatment may be readily awarded, even this is not without some controversy in legal principle.72
If either party can demonstrate that they have sustained a recognised psychological condition as a result of the error, they may recover compensation for this psychological injury.73
When a contest between genetic and gestational parents results in an award of custody in favour of one party subject to visitation rights or other conditions accommodating the other party, additional considerations may arise regarding damages. Parents who are raising a child subject to visitation arrangements and other practical complexities as a result of a provider’s error, may be able to establish compensable loss on grounds other than non-economic loss or loss of genetic affinity. This may extend, on both sides, to costs of family law proceedings which they would not otherwise have been required to undergo.
Conclusion
IVF treatment is an increasingly common and valuable option for Australians looking to start or grow their families. In the rare event of an error by an IVF provider in the creation or handling of embryos, significant legal and ethical consequences may follow.
Examples from overseas jurisdictions offer some guidance as to how courts may approach questions of parentage, custody and compensation in such cases. However, the novelty of the issues involved and a lack of reported decisions make it difficult for providers and patients alike to assess the likely legal outcomes. Aside from legal consequences, the personal toll and reputational harm that can result from an embryo error make it a devastating event for all involved.
1 R M Kamel 'Assisted Reproductive Technology after the Birth of Louise Brown' (2013) 14(3) Journal of Reproduction and Infertility 96–109.
2 M Lyne 'Total IVF births soar to more than 13 million' University of New South Wales Sydney.
3 ACB v Thomson Medical Pte Ltd [2017] SGCA 20.
4 IVF Australia, IVF Treatment and process, accessed 22 May 2026.
5 Above.
6 Above n 4.
7 Above.
8 'Chapter 5: Number of embryos for transfer in ART' (2007) 87(4) Fertility and Sterility S19–22.
9 Above n 4.
10 Perry-Rogers v Fasano 276 AD2d 67 (2000) 715 NYS2d 19.
11 Such as Johnson v Calvert (5 Cal 4th 84, 851 P2d 776, cert denied 510 US 874) and McDonald v McDonald 196 AD2d 7.
12 Above n 10, at [37].
13 Above n 10, at [50].
14 Above n 10, at [41].
15 For example Manukyan v CHA Health Systems (2019) 19STCV23892 LA Super Ct as discussed in A Murphy and M Collins 'Legal Case Study of Severe IVF Incidents Worldwide: Causes, Consequences and High Emotional, Financial and Reputational Costs to Patients and Providers' (2024) 3(3) North American Proceedings in Gynaecology and Obstetrics.
16 'US couple are compensated for IVF Mix-up' PET BioNews 20 September 2004.
17 The Jerusalem Post, 'Parents in new Assuta IVF scandal claim hospital offered them hush money', 22 May 2023, accessed 22 May 2026.
18 S Simana, V Ravitsky and IG Cohen 'The misplaced embryo: legal parenthood in ‘embryo mix-up’ cases' (2026) 52 Journal of Medical Ethics 267–73.
19 Above.
20 S Simana, V Ravitsky and IG Cohen 'Whose Child is She? The Genetics-Gestation Divide' (2025) Hastings Bioethics Forum, Reproductive Ethics.
21 Above.
22 Above n 20.
23 Above.
24 Ministry of Health, Embryo Mix-Up at Assuta Rishon Letzion: Ministry of Health Reviews Operations and Revokes Licenses of Two Staff Members, 11 November 2025, accessed 22 May 2026.
25 'Parents given wrong embryo set to sue hospital for NIS 100 million' The Times of Israel 16 March 2023.
26 S Harns, M Ortolon and J Miles 'Woman gives birth to stranger’s baby after receiving wrong embryo at Monash IVF' ABC News 10 April 2025.
27 Above.
28 Above n 26.
29 A O’Flaherty 'Monash IVF to pay financial settlement to families caught up in embryo bungles' ABC News 5 March 2026.
30 C Jones'Monash IVF mix-up that saw woman give birth to another person’s baby may set legal precedent' ABC News 11 April 2025.
31 Above.
32 Above n 29.
33 Above.
34 John Doe and Jane Doe v IVF LIFE Inc D/B/A fertility Centre of Orlando, and Milton McNichol, MD, Verified Complaint for Emergency Injunctive Relief.
35 D Harris 'White couple sues fertility clinic after mom gives birth to ‘non-Caucasian child’ in embryo mix up' Law and Crime 29 January 2026.
36 Above n 34, at [8].
37 Above n 34, at [9].
38 Above n 34, at [10].
39 Above n 34.
40 ACB v Thomson Medical Pte Ltd [2015] SGHC 9 (ACB v Thomson Medical 2015); above n 3.
41 ACB v Thomson Medical 2015, above.
42 ACB v Thomson Medical 2015, above n 40, at [2].
43 ACB v Thomson Medical 2015, above n 40, at [3].
44 ACB v Thomson Medical 2015, above n 40, at [4].
45 ACB v Thomson Medical 2015, above n 40, at [3].
46 Above.
47 See generally ACB v Thomson Medical 2015, above n 40.
48 Above n 3.
49 Above n 3, at [32]–[38].
50 Above n 3, at [37].
51 Above n 3, at [38].
52 Above n 3, at [41].
53 See generally, above n 3.
54 Above n 3, at [86].
55 Above n 3, at [87].
56 Above n 3, at [115].
57 Above n 3, at [119].
58 Above.
59 Above n 3, at [120].
60 Above n 3, at [135].
61 Above n 3, at [150].
62 As in Child Support (Assessment) Act 1989 (Cth), s 29.
63 See generally Family Law Act 1975 (Cth) (FL Act).
64 FL Act, s 60CA.
65 Above n 18.
66 See for example Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; BC9202689.
67 Including by state civil liability legislation such as s 22 of Civil Liability Act 2003 (Qld) (Qld CLA) and other state/territory equivalent provisions.
68 J Davis, Connecting with Tort Law, Oxford University Press, 2012, p 636.
69 As demonstrated in the reasoning in the UK decision of Salih v Enfield Health Authority [1991] 3 All ER 400; 2 Med LR 235; 7 BMLR 1.
70 Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131; [2003] HCA 38; BC200303801.
71 Civil Liability Act 2002 (NSW), s 71(1)(a); Civil Liability Act 1936 (SA), s 67(2) and Qld CLA, ss 49A(2) and 49B(2), although it should be noted that the Queensland legislation applies only to claims following failed sterilisation or contraception.
72 See Man Mohan Singh S/O Jothirambal Singh v Zurich Insurance (Singapore) Pte Ltd (now known as QBE Insurance (Singapore) Pte Ltd) and another appeal [2008] 3 SLR 735, where a claim for fertility treatment by parents who lost their two children in a car accident was disallowed, noting public policy considerations against a legal liability for the costs of 'replacing' a loved one given the uniqueness of human life.
73 As in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35; BC200205111.
