Monash IVF mix-up: Who custody of child born to wrong mother legally belongs to

News of Monash IVF mistakenly implanting an embryo into the wrong woman has sparked legal and moral discussions as it’s revealed the child is now a toddler.

The fertility giant released a statement on Thursday regarding an incident at its Brisbane clinic “where the embryo of one patient was incorrectly transferred to another patient resulting in the birth of a child”.

“On behalf of Monash IVF, I want to say how truly sorry I am for what has happened,” Monash IVF CEO Michael Knaap said.

“All of us at Monash IVF are devastated and we apologise to everyone involved. We will continue to support the patients through this extremely distressing time.”

7NEWS.com.au has since spoken with multiple lawyers and mental health experts regarding the mix-up.

Everyone said the potential legal issues that come from an incident like this are immense.

“What a mind-blowing stuff-up,” The Law Office of Conrad Curry director Conrad Curry told 7NEWS.com.au.

Curry said the mix-up was another example of where the law has not kept up with technology.

“Regrettably, Assisted Reproductive Technology (ART) providers are typically very poor at offering a supportive response to their failings and often take an adversarial approach given the exposure to legal liability,” he said.

“In terms of legal support, the victims of these types of errors are left to their own devices. There are agencies who provide information as to generic rights, but to my knowledge there is no publicly funded organisation providing legal advice in this context.”

The families involved have the option to sue on the basis of alleged misconduct, medical malpractice and/or negligence.

“They most certainly do have the right, and on the face of it, the error here is grossly negligent and devastating. It would not be unusual to see quite severe trauma and lasting psychiatric injury,” Curry said.

“The birthing mother might also be able to claim for the pain and suffering of carrying the baby to term, and any income loss suffered as the result.”

What the law says about custody

The case could also end up in court over who gains custody.

“The birth parents are already the legal parents of the child. Section 60H of the Family Law Act confirms this to be the case,” Thornton + King lawyer Erin Steiner told 7NEWS.com.au.

But, Steiner added, the case would not take priority in a family court “unless the child is at an immediate risk of harm”.

“In this case the parties would either need to come to an agreement about immediate steps, and if an agreement can’t be reached, seek the intervention of the Family Court,” Steiner said.

“There would not be standard practices in place for this situation because it is so unusual.

“Any person concerned with the care, welfare, and development of a child can make an application for custody (or time) with a child.”

Similar cases in the US have resulted in the child being returned to their biological parents.

Famous IVF bungle

One example involved Alexander and Daphna Cardinale.

In 2019, Daphna Cardinale gave birth to a stranger’s baby and for months she and Alexander raised her as their own until DNA testing uncovered their embryos were swapped with another couple.

The Cardinales eventually agreed to swap the child with their own biological offspring after the other couple gave birth.

IVF clinics are required to provide counselling under section 12 of the ART Act 2007.

“The journey of infertility can be an emotional rollercoaster and can have significant impacts on all areas of life from finances to intimate relationships, friendships, and mental health,” Centre of Perinatal Excellence founder and executive director Dr Nicole Highet told 7NEWS.com.au

“Trying to conceive and being repeatedly unsuccessful creates an intense, and at times overwhelming, range of emotions, all of which can impact wellbeing and mental health.

“This can include navigating grief and loss, balancing hope and despair as well as strong feelings of anger and jealousy which can be both painful and shameful to acknowledge.”

Typically, families are offered counselling by the clinic, however this can be “limited”.

“We are private providers of psychological support for those who are struggling with IVF independent of the clinics and clients can get a mental health care plan from their GP to help with the cost of sessions,” Happy Minds Psychology founder and principal psychologist Sarah-Jayne Duryea told 7NEWS.com.au.

IVF mix-up erodes trust

Trusting an IVF clinic after an incident like the Monash mix-up would be extremely challenging.

“I think fear of losing custody of the child who the birth mother carried would also be significant,” Duryea said.

“The patients undergo extensive legal and psychological counselling to consider the implications of using a donor, and to make sure they understand what this means for themselves, the donor and the child, both immediately and in the long term.

“With this mix-up, both parties have been thrown into a situation that they couldn’t prepare for and very possibly wouldn’t have chosen... The birth parents have spent the last few months bonding with and caring for their child, and the child has experienced this care, so both birth parents and the baby will be deeply affected by this, as well as the original owners of the embryo.”

The child will also face difficult questions about their genetics and identity.

“Part of the answer to the question ‘who am I?’, and this becomes more relevant as the child gets older,” Duryea said.

“So, for these families, there is a lot to consider in both the short term and the (very) long term, not just for themselves but for their child.”

In 2021, 18,594 babies were born in Australia as a result of IVF treatment, according to a report from UNSW.

IVF (in vitro fertilisation) treatment helps people facing infertility to conceive and have a child.

It is a process in which an egg and sperm are combined outside the body to assist in conception.

Investigations are now underway into the Monash IVF mix-up.

Monash IVF was contacted by 7NEWS.com.au for a statement on Friday.