Understanding the legal risks in fertility treatment errors
Monash IVF, one of Australia’s largest fertility providers, is again under scrutiny after a second serious embryo transfer mistake — this time involving a same-sex couple.
On 5 June 2025, a patient at Monash IVF’s Melbourne clinic was implanted with her own embryo instead of her partner’s, disrupting their agreed treatment plan. The couple had planned for one partner to carry the other’s embryo, a common choice among same-sex couples seeking to share the experience of parenthood.
This incident follows a separate bungle at Monash IVF’s Brisbane clinic, where a woman gave birth to a stranger’s baby due to an earlier embryo mix-up — a case that only came to light in February this year.
What went wrong?
Monash IVF confirmed the June incident in a notice to the ASX and has extended a public apology to the affected couple. They have promised to review and strengthen their internal procedures.
Victorian Health Minister Mary-Anne Thomas called the error “completely unacceptable”, noting that it showed serious shortcomings in clinical governance. “To not be respected, not have your treatment plan followed — I can’t imagine how that couple is feeling right now,” she said.
Why this matters
Fertility treatment is a highly sensitive area of medicine. Patients are trusting clinics with some of the most intimate and significant decisions of their lives, yet repeated incidents continue to undermine the credibility and sensitivity of the corporations who hold the hopes and dreams of would be parents in their hands
From the legal perspective these types of mistakes raise serious questions about the responsibility of the providers to train staff and institute watertight policies and processes, and the regulatory oversight to ensure appropriate standards are in place and providers are compliant.
In Australia, fertility services are regulated state by state, which can result in inconsistent standards and accountability. Surrogacy and fertility lawyer Sarah Jefford warned that such gaps in regulation leave too much room for error — and not enough avenues for redress.
“We’re relying on clinics to do the right thing,” she said. “When things go wrong, accountability is really lacking.”
What legal options do patients have?
Errors like incorrect embryo transfers could give rise to claims in medical negligence, breach of contract, or even consumer laws under the Australian Consumer Law. Patients may be entitled to compensation for emotional distress, financial loss, and other impacts — but proving fault and securing a remedy can be complex.
In such sensitive cases, legal advice from an experienced medical negligence team is essential. It’s also important to understand that outcomes vary depending on the state’s legislation, the facts of the case, and whether the clinic followed standard care protocols.
Lessons for patients and professionals
This situation serves as a powerful reminder that even in highly regulated medical settings, mistakes can occur — and the consequences are profound. Clinics must ensure that all procedures, especially those involving embryo handling and transfer, are double-checked, documented, and communicated clearly with patients.
For patients undergoing IVF or other assisted reproductive treatments, it’s worth asking about verification systems, consent protocols, and how clinics respond if something goes wrong.
At the heart of these cases are individuals and families whose lives are affected in deeply personal ways. When the trust between patient and provider is broken, the legal system plays a vital role in ensuring accountability, support, and hopefully, reform.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
