IVF embryo mix-up – Israel court determines parentage

In a precedential ruling, a Family Court in Israel held that the genetic progenitors of a two-year-old child born to a genetically non-related couple following a high-profile embryo mix-up at a fertility clinic (see BioNews 1160), shall be determined her parents.

The raising parents X and Y, former IVF patients of the Assuta clinic in Israel, discovered during X's pregnancy that the embryo transferred into her uterus was not genetically related to them. An investigation was immediately instigated by the Ministry of Health into the unfortunate conduct of the IVF unit. Meanwhile, an internal investigation in the IVF unit was launched in an attempt to identify the genetic parents. During this time, X had undergone an intrauterine operation to repair a cardiac defect from which the fetus (now child) suffered, and gave birth to baby Sofia in October 2022 (see BioNews 1165).

In October 2023, when Sofia was approximately 12 months and cared for by X and Y, the courts finally allowed – after a series of appeals – genetic testing for A and B. This affirmed that IVF patients A and B are Sofia's genetic parents. Hence, the situation became more complicated.

Various legal proceedings that took place in the Family, District Court and the Supreme Court, focused on X and Y's appeal to stop genetic testing to determine the genetic parentage. Ultimately, in the absence of specific legislation to resolve this unprecedented conflict under Israeli law, the courts accepted the request of A and B to undergo genetic testing to determine whether they are the genetic parents. However, the Supreme Court explicitly chose not to decide whether genetic ties supersede the biological/physical link between the birth mother and the child. The main legal justification for approving such genetic testing was the importance Israeli law prescribes to one's right to know his/her genetic origins.

Finding out that they are Sofia’s genetic parents led A and B to apply to the Family Court to determine parentage, guardianship and custody of Sofia. On 24 November 2024, the Family Court ruled that A and B are Sofia's legal parents, and that she should be orderly transferred to them with the accompaniment of the department for social services.

The Family Court determined, based upon the social worker's review report and an expert opinion, that both couples have good parenting ability. The court therefore focused its ruling on the principle of the best interests of the child, as well as on other justifications.

As the recommendations of the social worker's review report and the court-appointed psychologist expert’s opinion were opposed, the judge was forced to adopt one of them in order to determine who would be Sofia’s legal parents, and in line with that, what would be Sofia's best interests. The review report emphasised the already-formed attachment and the difficulty and harm that may result from disconnecting Sofia from X and Y. The expert's opinion cited future (particularly long-term) benefits of her transfer to A and B, trumping the damage that can and will be caused in the short-term, as a result of the disconnection. The judge opted for the psychologist's expert’s opinion.

Notably, in what seems to be a solution best serving this triangular conflict, both the review report and the psychologist's expert’s opinion interestingly recommended that a relationship with the couple not raising the child (be it X & Y, or A & B), should be maintained. The court found (supported by the expert's opinion) that 'the genetic parents are better able to contain (and by a considerable margin) contact with the second pair of parents,' citing the expert’s opinion that X and Y in fact 'deny the genetic reality of the child.'

Some ethico-legal observations

a. Consistent with the increasing weight ascribed to one’s right to know their (authentic) genetic origins, both the review report and the expert opinion recommended telling the child her life story, in an age-appropriate manner. And so, alongside the focus on genetic affinity and its significance for the child (for future identity construction, connecting to the family lineage, physiological similarity, shared family values, full siblinghood, etc), the court put great emphasis on the narrative of the case. It espoused the expert’s opinion that between the two competing narratives – a. 'a mistake was made that led to your growing up in the first two years of your life with other good people, but it was then corrected and you were transferred to live with us'; and b. 'you did not grow up with your genetic parents because of a mistake' – the former is to be preferred. The court found that this narrative can only be convincingly conveyed to the child by A and B.

b. Focusing on the best interests of the child allowed the court to overlook 'physical affinity' arguments of X to the child, which she carried to term (involving said intrauterine operation), gave birth to and raised, with Y, for the past two years. Such affinity relies on the assumption of the emotional bond created between the woman and the fetus, and then newborn, and finds support in the feminist moral theory of ethics of care, and various empirical studies. This line of argumentation is vehemently voiced by opponents to the ruling.

The said focus on Sofia's best interests, and the court's adoption of the genetic affinity approach, also made any deliberation on the interests of A and B, redundant. While there is typically a dichotomous distinction between the genetic and physical affinity when determining parentage, we would suggest that in the case before us, where A and B underwent the physical realities of IVF (A had to go through ovarian stimulation and egg retrieval, and B was required to produce sperm), the physical dimension also exists. In other words, where IVF is involved in a child's reproduction story – the genetic progenitors have both physical and genetic affinity to the child.

c. Maintaining a relationship with the non-raising couple – seems like a new (forced) form of co-parenting. While it may be in the child’s best interests in the period following her transfer to A and B (to mitigate the potential trauma from being uprooted from the life she knows, the shattering of her narrative identity, etc), it may prove highly challenging and potentially harmful to the child, after a period of adjustment. One can only imagine the many conflicts arising around her upbringing and the need for clear boundaries to be set by social services.

d. The case reflects a duality between the significance of genetic ties for prospective parents who require the assistance of IVF treatments for having a child, and the importance of the close (loving) relationships between parents and their children. On the one hand, genetic ties with one's offspring are very important. One can assume the preference for having genetic ties with one's progeny is shared by most people suffering from infertility, who opt for IVF rather than adoption in order to maintain such ties.

This is particularly so, perhaps more than in other countries, for Israel's pro-natalist society, with over 60,000 IVF cycles conducted annually (for a population of about 10 million people). On the other hand, many people, including experts in law, bioethics, psychology and social work, consider the psychological link between parents and child, as an overriding factor. This reflects the importance of the family in Israeli society, not just as a social institution, but also as part of the narrative identity and self-determination of the individual. In other words, according to this stance, Sofia's current close ties with X and Y who have raised her since birth, define who she is, whereas the genetic origins linking her to A and B, which also define her, come second.

e. From a feminist perspective, particularly from an ethics of care approach, the court's judgment supporting the genetic affinity approach may be perceived as a male-centric decision, allowing 'science' to overrule the female experience of being pregnant, giving birth and creating a bond with the child once born. However, giving preference to genetic ties over the latter human (mainly female) experiences does not mean values of care, love and close relationships are being ignored. Genetics is not an issue by itself. The issue is what genetics in fact entails. As the judge highlighted, genetics carries social and psychological implications. Ethics of care supporters would probably deem this important, when trying to resolve the unbearable circumstances of this case.

To conclude, this heart-wrenching, legally and ethically complex conundrum, is not yet completely resolved, as X and Y intend to appeal the ruling. Time could not be more of the essence for a two-year-old toddler unaware of the fateful decisions being made for her future.