Relative to other medical technology, in vitro fertilization (IVF) is a modern development. The first successful IVF in the U.S. was in 1981. Today, approximately 2% of all births in the U.S., or one in 50 babies, are conceived by IVF.
It’s a common method of achieving pregnancy for women who suffer from female infertility, partners of men who have male infertility, same-sex couples who wish to have a family, individuals who wish to use donor eggs or sperm, couples with genetic disorders, people with unexplained infertility, people over age 40, or those who have certain health conditions.
So, what are the lawsuits about? Is IVF not working?
On the contrary, IVF technology is working quite well. So well, in fact, that the mixups are happening because there are so many embryos and so many expectant parents—and lab mistakes are becoming more common.
How does IVF work?
We need to understand how the IVF process works to understand how mistakes that lead to lawsuits happen.
Often (but not always), the process begins with freezing embryos, or fertilized eggs. The egg is removed from the woman’s body and combined with sperm in a laboratory, so it contains both parents’ genetic material, and then it can be frozen. This might be for a variety of reasons; one is that the parents might want to preserve embryos to be implanted later. Another is that some parents need to test embryos for genetic diseases or abnormalities. If this is the case, then they take a sample and freeze the rest while the testing takes place in order to preserve the viability of the embryo.
When the woman chooses to attempt to become pregnant, the fertilized egg is implanted in the uterus and hopefully results in a healthy pregnancy.
IVF lawsuits
The lawsuits aren’t because something went medically wrong. Women continue to have healthy babies born via IVF.
The problem is even scarier than that.
38-year-old Krystena Murray sued her IVF clinic because it implanted the wrong embryo—she gave birth to someone else’s baby. Murray had no idea anything was wrong with her implantation procedure. She went through nine months of pregnancy (following a lengthy IVF ordeal) and delivery, eagerly awaiting the birth of her son. But moments after the birth, she was shocked to see that her baby was dark-skinned when both she and her selected sperm donor are white.
Nonetheless, she loved her baby and their mother/baby bond began to grow. However, a DNA test proved that the baby actually belonged to another couple. The fertility clinic had accidentally implanted their fertilized egg in Murray’s uterus; she’d been hoping the baby was biologically hers, but perhaps fertilized with someone’s sperm other than the donor she’d chosen. And so, she was ordered by a court to return the baby to his biological parents. Murray filed a lawsuit against the fertility clinic for the mistake.
It turns out she’s not the only one. There were more than 300 lawsuits between 2019 and 2024 alleging that embryos, eggs or sperm were either used on the wrong recipient, inadvertently lost, or improperly destroyed.
Are IVF mistakes medical malpractice?
An IVF mistake can be considered medical malpractice if it is the result of negligence by a doctor, fertility clinic, or lab. A patient might have grounds for a medical malpractice lawsuit if the clinic’s negligence leads to emotional distress, financial loss, or wrongful birth.
Examples of IVF medical malpractice
- Embryo mix-ups, or implanting the wrong embryo in a patient, such as Murray’s case.
- Lab errors, including mislabeling or mishandling sperm, eggs, or embryos.
- Failed genetic testing, or failure to screen for genetic disorders if indicated based on the patient’s medical history and other factors.
- Improper embryo storage, which is usually damage or destruction from negligent freezing and thawing procedures.
- Medication errors, like the wrong doses of fertility drugs that harm the patient or the embryos.
- Negligent implantation, which is failure to properly implant the embryos in the uterus or implanting too many embryos.
- Fertility fraud happens in very rare cases. This would be when a doctor uses their own sperm to impregnate a patient without their consent.
A single IVF attempt could cost between $15,000 and $30,000 on average. And there’s never a guarantee of success. In general, about 25-30% of first-time IVF cycles result in a live birth. Success rates can decline with age and based on the underlying cause of infertility. The implantation failure rate for IVF tends to be about 10-25%. Therefore, for some couples undergoing IVF, it could be their only chance at having a biological child. If it fails because of medical malpractice negligence, it’s a tremendous financial and emotional loss.
Wrongful birth, wrongful life, and wrongful conception lawsuits
Wrongful birth is a type of medical malpractice lawsuit in which parents claim negligence for failing to advise them about a potential disability or defect that affected their child. They therefore did not have the opportunity to make an informed decision about continuing or terminating the pregnancy. The parents claim that if they were properly informed about the potential birth defect, they would have terminated the pregnancy.
This might include failure to diagnose a genetic condition or birth defect, misinterpretation of prenatal test results, failure to provide genetic counseling, and failure to offer or perform prenatal testing.
Wrongful birth claims are prohibited in Arkansas, Idaho, Kentucky, Michigan, Minnesota, Missouri, Oklahoma, Pennsylvania, South Dakota, or Utah. Some other states limit damages to the costs of the pregnancy, delivery, and any costs associated with the child’s condition.
A wrongful life lawsuit is brought by the child, not the parents. A child in California, Maine, New Jersey, or Washington state may bring this type of lawsuit for objectively provable economic damages. They may not recover general damages for pain and suffering or similar.
A wrongful conception lawsuit (also called “wrongful pregnancy lawsuit”) is also a type of medical malpractice claim. This is when a parent alleges that negligence by a medical professional led to an unwanted pregnancy. This could be a failed vasectomy, tubal ligation, or other sterilization procedure, a defective or malfunctioning contraceptive device like an IUD (for instance, Mirena or ParaGard), or negligent advice or treatment related to contraception.
Fertility clinic laws and lawsuits in the U.S.
A doctor who provides IVF services must be licensed to practice medicine. However, the fertility “industry” is largely unregulated. The main mechanism for regulation is the court system. If a patient believes they’ve been injured by IVF-related medical malpractice, they may file a lawsuit against the clinic, doctor, or manufacturer.
Medical Malpractice Payments by State (2023)
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$15 million jury verdict for lost eggs and embryos
In 2021, a federal jury in San Francisco awarded more than $14 million for pain, suffering, and emotional distress to three women whose eggs were destroyed and a couple who lost embryos after the cryogenic storage tank at their fertility clinic failed.
The jury found that a manufacturing defect caused the tank failure, and it held the manufacturer 90% responsible for the loss because it failed to recall the malfunctioning part. The fertility clinic was found 10% responsible. The women who lost eggs were awarded between $2 million and $3 million apiece, and the couple who lost their embryos was awarded $7.2 million.
What types of damages can a victim of IVF malpractice receive?
A plaintiff in an IVF lawsuit may claim damages that include:
- Emotional distress and psychological harm
- Medical expenses for corrective procedures
- Lost embryos or wrongful birth claims
- Legal fees and other costs
What should you do if you believe you’ve suffered an IVF error?
Infertility is devastating to someone who wants to have a child. But learning that your pregnancy has gone horribly wrong—or that the eggs or embryos you saved for this purpose—might be even worse, particularly when it’s the result of negligence.
It’s natural to want to hold the responsible party accountable for their mistakes, which is why finding a medical malpractice lawyer is your best approach to justice. Here’s what to do to start:
- Request medical records from the fertility clinic.
- Consult a medical malpractice attorney.
- Preserve all documents related to treatment, consent forms, and communications.
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