The future of a child whose birth mother was mistakenly given a stranger’s embryo is a legal and ethical “nightmare” without precedent in Australian law, experts say.
Monash IVF, which operates across Australia, has apologised after a patient at one of its Brisbane clinics had an embryo incorrectly transferred to her, meaning she unwittingly gave birth to another woman’s child.
Monash said the situation was the result of “human error” and it was confident it was an isolated incident.
Shine Lawyers Queensland medical negligence practice leader Frances Bertram said determining the child’s parents was a family law matter.
“It leads into all sorts of custody questions as well once you start looking at who then are the parents and whether the child is raised by the biological parents or by the parents who carried and gave birth to the child,” Bertram said.
“It just becomes such a nightmare.”
Bertram said all parents involved may be entitled to “very significant” compensation if they start legal action, and other family members may also launch claims.
“From a legal point of view, the ongoing impact of this is almost incomprehensible as well; this is not something that somebody can simply make a claim for and potentially will get over,” she said.
“The biological families, the birth family, for the rest of their lives, every time something comes up like Mother’s Day or Christmas … from the psychological point of view, that is something that’s really hard to measure.”
Family creation lawyer Sarah Jefford told the ABC the case could set a legal precedent.
“There are presumptions in Australia about the birth parents being the legal parents of the child,” she said.
“But whether the genetic parents want to come forward and start a discussion about that, then we’ll have to wait and see.”
Dr Hugh Breakey, a senior research fellow in moral philosophy and the deputy director of the Griffith University Institute for Ethics, Governance and Law, said the situation amounted to an “incredible ethical tangle”.
“It will wind up being a parental decision and we can only hope that it is done in a really considered and reflective way,” Breakey said.
“It is one of those cases where we have two claims that are both on their face legitimate, but both cannot possibly be realised. Sometimes we have to rise above and say it’s not about what we are owed, it’s what this child is owed, and we have to do the best thing for them.”
The case has created considerable concern among donor-conceived people, including many who have been lobbying for stronger disclosure laws and other protections such as a national register.
In 2024, Monash IVF reached a $56m settlement with more than 700 former patients after embryos were destroyed due to allegedly faulty genetic screening.
The class action claimed about 35% of embryos found to be abnormal were normal.
The company confirmed it had reached the settlement through mediation but noted it had made no admission of liability.
Katherine Dawson, who estimates she could have up to 700 siblings, said parents whose children were conceived through IVF should seek DNA tests.
Dawson said the latest situation might not have come to light but for Queensland laws that compelled Monash to disclose the error.
“The evidence of it being an isolated incident is really only because they’ve never had to check or disclose,” said Dawson.
“One in 18 births are IVF-conceived children, [and] if these checks and balances are being missed as recently as last year, there needs to be more record-keeping and more information.”
Leading Australian IVF specialist and former Monash IVF director Prof Gab Kovacs said there were over 100,000 IVF cycles in Australia annually, so every few years a mistake is made.
“There have been mistakes recognised in the past, it’s more often that the wrong sperm is used when the sperm and the egg are put together,” he told ABC Radio Melbourne.
“Certainly overseas, there have been recognised cases [of] the wrong embryo being put in.”
He said stringent processes have been in place for decades including a second person signing off whenever a person handles human tissue.
“I don’t think there’s much more that can be done [other than] to accept that human beings make mistakes,” Kovacs said.
He believed no other similar case has been tested in court before.
Monash IVF chief executive, Michael Knaap, apologised and said the company would continue to support the patients.
“All of us at Monash IVF are devastated and we apologise to everyone involved,” he said.
“We have undertaken additional audits and we’re confident that this is an isolated incident.”
With reporting by Australian Associated Press
