Legal experts have warned that the biological parents of a baby born into the wrong family after an IVF blunder will have no legal rights to the child, while the clinic at fault is likely to avoid regulatory penalty. The unnamed woman was mistakenly implanted with an embryo belonging to another couple following a 'human error' at a Monash IVF clinic in Brisbane.
Family law experts suggest that in Queensland, the rights of biological parents are generally subsidiary to those of birth parents, a formulation designed to protect birth parents from challenges by egg or sperm donors. Michael Gorton AM, recently commissioned to investigate Queensland's fertility regulations, told the Sydney Morning Herald that the case is unprecedented in Australia's three-decade IVF history.
'The Family Court would start with the presumption that the birth mother is the birth mother,' Mr Gorton said. 'It would be a landmark case because they would have to consider these particularly unique circumstances where the child is biologically the child of other people.' He added that Monash IVF will not face punishment from the state's health regulator, as it was only granted regulatory oversight after the implantation occurred.
Monash IVF discovered the mix-up in February when the birth parents requested to transfer remaining embryos. The clinic identified one more embryo than expected and realised the birth mother had been implanted with an embryo from another couple. Chief executive Michael Knaap apologised, saying the clinic is 'devastated' and has offered support to both families.
The Fertility Society of Australia and New Zealand has called for unified fertility regulations after a 2023 review identified over 40 pieces of legislation affecting assisted reproductive technology in the country. Mr Gorton noted that the greatest motivation for change will likely come from the legal case, which could result in substantial damages.
