Monash IVF has been under fire for its recent errors, including a case where a stranger’s embryo was implanted and resulted in birth, the first such case in Australia.
As a result, there have been calls for reforms in IVF laws and regulations to ensure greater transparency and accountability in the IVF industry. A comparison with similar US cases gives some insight into how courts may decide if legal proceedings are to be initiated here.
The background
If you’ve been following the news, you may have seen Monash IVF come under national scrutiny following a series of unfortunate errors shocking not only the families involved, but also many current and prospective IVF patients.
In August last year, Monash IVF settled a class action involving over 700 members for defective genetic testing of embryos and the discarding of potentially viable embryos. The clinic’s CEO, Michael Knapp, resigned earlier this month, after it was revealed that the clinic had transferred a patient’s embryo back to herself, rather than implanting the embryo into her partner.
That incident followed another involving a Brisbane woman who discovered that she had given birth to a stranger’s baby after being implanted with another couple’s embryo in early 2023. Monash IVF realised the error in February 2025, after the birth parents requested that their remaining frozen embryos be transferred to another provider and the clinic identified an additional embryo remaining in storage for the birth parents.
While neither the birth parents nor the biological parents have started legal proceedings at this stage, the presumption is that the birth parents are the legal parents of the child, since they would have been registered as the child’s parents at birth.
This represents a devastating conundrum for the parties involved and raises a minefield of legal and ethical issues which will need to be disentangled. The Assisted Reproductive Technology Act 2024 (Qld) introduced last year does not apply to this case as it is due to be implemented from September 2025. Under the new regulations, IVF providers will be required to keep records and report errors (such as the aforementioned) to the regulator.
The Act will also grant Queensland Health the power to suspend, or ban assisted reproductive technology providers from operating. However, Monash IVF has stated that these laws would not have prevented the incident from occurring, as the cause was human error. Although this is the first case of its kind to surface in Australia, IVF-related lawsuits have been unfolding in the United States for years, offering valuable insight into what could happen here.
US Cases
In 2023, a US woman, Krystena Murray, conceived via IVF treatment and delivered a baby who was of a different ethnicity to herself and the sperm donor she had selected. Murray informed the IVF clinic but intended to raise the child herself. However, the clinic notified the biological parents who initiated custody proceedings, resulting in the surrender of the child when he was only a few months old. Murray is still unaware of what happened to her own embryo and has commenced legal proceedings against the fertility clinic.
Further, a 2019 case from the United States involved a couple who gave birth via IVF to two boys who shared no resemblance to the couple. A subsequent DNA test confirmed that neither parent was genetically related to the children nor were the boys related to each other. In fact, the boys had separate biological parents - and the couple who gave birth to the boys were forced to give up custody of both babies. The couple filed a lawsuit against the clinic which was eventually settled for an undisclosed sum.
Implications
This chain of events prompted state and federal health ministers to meet and discuss the creation of a national, independent accreditation body to ensure greater uniformity and clarity surrounding IVF processes across the country. Experts have also called for further reforms such as requiring embryologists to be registered in the same way as medical professionals, which is mandatory in New Zealand, but surprisingly not yet in Australia.
With up to 20,000 babies (one in eighteen) being born through IVF in Australia each year, concerns are growing not only about how these services are regulated, but also how they are marketed.
The commercialisation of fertility technology is blurring the lines between ‘customer’ and ‘patient’, enabling companies to make financially beneficial decisions over ones that are medically necessary for the patient. For example, a clinic may allow a patient to undergo further IVF cycles, even when chances of success are low. As such, it is important that medical professionals adhere to their ethical obligations to only provide services that are essential for the patient, even if a patient is willing to pay for further treatment.
It is hoped that these incidents involving Monash IVF were isolated cases, rather than being indicative of a systemic issue - however they do raise serious concerns regarding the safety and security of embryos being managed by these assisted reproductive technology providers. They also highlight the devastating outcomes that can occur for the patients when things go wrong.
It is very much a watch this space situation here in Australia.
