In-vitro fertilization (IVF) is often viewed as a beacon of hope for couples yearning to start or expand their families. However, the emotional journey can be fraught with challenges. The recent incident involving a Brisbane IVF clinic has brought to light the devastating consequences of human error in this sensitive field. Imagine the joy of pregnancy, only to discover that the child you’ve carried isn’t biologically yours. This blog explores the complexities and legal implications surrounding such a tragic mistake, as experienced by two families caught in a heartbreaking mix-up.
Watch the full video Interview with Erin Steiner in A Current Affair
The Emotional Roller Coaster of IVF
IVF is an emotional roller coaster, filled with hopes, dreams, and often, the crushing weight of disappointment. The journey can involve numerous cycles, each fraught with its own emotional toll. Added to the already heavy emotional toll of not being able to conceive a child naturally, the process involves hormone medication that can cause havoc to a woman’s physical and emotional health.
For the couple who mistakenly gave birth to another couple's child , the joy of carrying a child has been overshadowed by an unimaginable revelation. Family law solicitor Erin Steiner, who has over a decade of experience practicing in the area of IVF and surrogacy law, articulates the horror of the situation: "Finding out that news is just devastating for both of them."
The Case of Human Error
This shocking incident unfolded at a Brisbane IVF clinic, where a woman was mistakenly implanted with another couple's embryo. The term "human error" seems almost inadequate to describe the severity of this blunder. IVF clinics are expected to have, and for the most part do have, stringent protocols to prevent such mistakes, making this occurrence even more alarming. Steiner notes that "it's unthinkable that this sort of thing can happen," reinforcing the need for rigorous checks and balances in IVF procedures.
There are external regulations in place, and internal processes to avoid this kind of error. However, where humans are involved in the process, the risk of error exists.
The IVF Process: A Personal Journey
Erin Steiner, who has personal experience with IVF, sheds light on the emotional investment involved. She recounts her own journey, sharing that it took ten cycles before her twin boys were conceived. The couple that gave birth to the wrong child likely faced similar struggles, although their specific journey remains unknown, even one cycle can be a difficult process.
The couple whose embryo was mistakenly used are also likely to have experienced the difficulties associated with the IVF process. The emotional toll of IVF can be overwhelming, making the revelation of a mix-up even more harrowing.
How Did This Happen?
The discovery of this mix-up only came to light when the biological parents decided to transfer their embryos to another clinic. If they had not taken this step, the mix-up may have gone unnoticed, and the child would have grown up unaware of their biological origins. The birth and biological parents would never have known the true biological origins of the child.
Questions of Parentage and Legal Implications
The legal landscape surrounding this case is complex. Under Section 60H of the Family Law Act 1975 (Cth), the birth parent and her partner (either married or de facto) are considered the legal parents of the child. However, this raises questions about whether this presumption of parentage can be challenged. Steiner expresses concern about the implications for both families involved. If the case goes to court, a judge will ultimately decide the fate of the child, a situation Steiner describes as "an absolute mess."
Under section 60H of the Act the woman undergoing the procedure (and the other intended parent), must consent to the “procedure”. Further, the person who provided the genetic material must also consent to the use of their “genetic material”.
The question arises, is consent given to the procedure if the wrong embryo is implanted? And if consent is not given to that specific embryo being transferred, is the presumption of parentage under section 60H displaced?
Further, if the person who provided genetic material did not consent to it being used in that specific procedure, is the presumption of parentage also displaced?
These are some of the technical legal issues the court would have to consider if a case such as this was ever brought before the Family Court.
The Best Interests of the Child
One of the most pressing concerns is the well-being of the child. Steiner states that the family courts primary consideration is the best interests of the child. "If you think about that child growing up, and if that child comes to know that it was withheld from its biological family, the effect could be devastating," she explains. This raises the question of how to navigate the introduction of the child to their biological family while considering the emotional bonds already formed with the birth parents.
The Family Court deals with issues about who a child should live with on a daily basis, however this fact scenario is unique. Biology is not a deciding factor in relation to who a child should live with, it is one of many factors the court must have regard to. This includes the child’s relationship with “other significant people” which is not qualified by biology. How the court would decide who the child should live with is unknown.
Potential Outcomes
The hope is that both families can come to an amicable agreement regarding the child. The parties can obtain Consent Orders in the Family Court to formalise their agreement about who the child will live with. If the parties agree the biological parents should be the legal parents of the child, they may need to formally adopt the child, as the Family Court under section 60H may not be able to make a declaration of parentage in favour of the biological family by consent.
However, if they cannot reach an agreement, the Family Court will have to make a decision that could have long-lasting implications for everyone involved, and may be a devastating outcome for either couple. Even if the presumption of parentage under section 60H was not displaced, and the non-biological parents remained the child’s legal parents, the court can still make orders for the child to spend time, or live with its biological family.
Steiner notes that this is a unique case, and the family court has never dealt with a situation quite like this before so the potential outcome is unknown,
The Psychological Impact
Beyond the legal ramifications, the psychological damage inflicted upon both families is immeasurable. The couple that mistakenly gave birth to a child that was not their biological child, will likely grapple with feelings of loss and betrayal. Steiner emphasises that "there's no amount of money that is going to compensate" for the emotional trauma experienced in this situation.
The rise of IVF has made this case particularly relevant, as more couples turn to assisted reproductive technologies. Anyone undergoing IVF should be able to rely on the integrity of the process.
Preventing Future Mistakes
As the IVF community grapples with this incident, the question arises: how can such mistakes be prevented in the future? Steiner acknowledges that while systems are in place, human error is always a possibility. "You can put all the regulations in place you like, but the fact is human error will occur where humans are involved," she states. This underscores the urgent need for clinics to review their protocols and ensure that such mix-ups do not happen again.
Legal Recourse and Compensation
In the aftermath of this heartbreaking incident, both families may seek compensation for the emotional distress caused by the mix-up. However, Steiner notes that financial compensation may not address the deeper psychological scars left by this experience. The focus should be on finding a resolution that prioritises the child's best interests, rather than merely pursuing monetary gain, though compensation is clearly warranted in this case.
What Can Be Done?
For couples undergoing IVF, this incident highlights the importance of vigilance. Couples should ask questions about the clinic's procedures, ensure proper protocols are in place, and remain informed about their rights. Steiner suggests that prospective parents do their due diligence to avoid becoming victims of similar situations.
Conclusion
The case of the Brisbane IVF mix-up serves as a sobering reminder of the complexities and emotional challenges associated with assisted reproductive technologies. As families navigate the aftermath of this heartbreaking event, the focus should remain on ensuring the well-being of the child and preventing future errors. The emotional toll of IVF is significant, and the legal landscape surrounding it is fraught with challenges, especially if errors occur. Moving forward, it is essential for both IVF clinics and parents to learn from this incident to protect the dreams and lives of families having to go through the IVF process.
