Embryo Mixups in IVF Clinics & Consequences

How often have mix-ups occurred in USA?

• Donna Fasano of New York, gave birth to another couple's baby in 1998. Ms Fasano, who is white, gave birth to a black child and a judge ordered that she should hand the infant over to his biological parents. According to court papers, it was the result of an embryo mixup at Central Park Medical Services, a fertility clinic on W. 57th St. owned by Dr. Lillian Nash, an obstetrician-gynecologist who was treating both couples. Nash said at the time she informed both families of the mistake when Fasano reported she was pregnant about a month later. Deborah Perry-Rogers, 40, and her husband, Robert, an African-American couple from Teaneck, N.J., failed to conceive. When the Rogerses learned of their genetic son, they sued the doctors for custody of the boy in a bitter court fight against the Fasanos that they eventually won. The Fasanos gave up Akeil and lost a bid for visitation. – from http://news.bbc.co.uk/2/hi/health/2115522.stm and http://infertility.about.com/gi/dynamic/offsite.htm?site=http://www.nydailynews.com/news/local/story/231501p%2D198804c.html

In other places?

• Yes. In 2002 in England a similar case of embryo mixup took place. A white couple undergoing IVF treatment had black twins after a blunder at a fertility clinic. Under the Human Fertilisation and Embryology Act 1990, the woman who gave birth to the twins is considered their legal mother.
• There was also a case in the Netherlands in 1993. – from http://news.bbc.co.uk/2/hi/health/2116589.stm

What have been the consequences of mix-ups?

• The American case: In 1999, the Fasanos asked a judge to order psychological tests to see whether their son (who is white) and the black child who was mistakenly implanted in Mrs. Fasano at the same time should have more time together. Donna Fasano (who gave birth to both boys) sought greater visitation, saying the babies born to her need to stay close to one another. They believe that the Rogerses reneged on an agreement about visitation and other issues. The parents of the black baby say she's asking for too much. Also, in the years since the birth of the babies, both Nash (obstetrician-gynecologist) and Obasaju (the embryologist responsible) fought a lawsuit brought by the Rogerses', but lost a bid to throw it out. The Fasanos settled their own suit against Obasaju and Nash in early 2004 for an undisclosed sum. – from http://www.seacoastonline.com/1999news/6_30odd.htm .
• The English case: in terms of legal redress, the woman who gave birth to the twins may have had an action in battery against the doctors and the clinic as she did not consent to the treatment she eventually received: the embryos placed in her were not the embryos she had consented to. Both couples may have had actions in negligence against both the clinic and the doctors if it was found that they fell below the standard of care to be reasonably expected of them. The doctors and the clinic had not committed a criminal offence under the Human Fertilisation and Embryology Act 1990 so it was unlikely that they would be criminally prosecuted. However, if a complaint of misconduct were filed against the doctors involved then the General Medical Council would investigate it. There has also been a breach of the clinic's licence conditions. The licence could be reviewed by the Human Fertilisation and Embryology Authority (HFEA) and possibly revoked. – from http://news.bbc.co.uk/2/hi/health/2116589.stm
• This incident involved the incorrect identification of sperm samples. In the independent review conducted by Professor Brian Toft, it was concluded that it was impossible to say with certainty at what point in the process the misidentification of sperm had occurred. However, a number of weaknesses were found in the practices and protocols used in the embryology laboratory and these were set out in detail in the report, together with recommendations to avoid similar incidents in the future. – from http://www.dh.gov.uk/assetRoot/04/08/43/58/04084358.pdf

NOTE: A very interesting (and lengthy!) article on the Fasano/Rogers case that questions many of its legal arguments and takes issue with the court's decision may be found at:

Bender, Leslie. "Genes, parents, and assisted reproductive technologies: arts, mistakes, sex, race, & law." Columbia Journal of Gender and Law 12.1 (Wntr 2003): 1(76). Expanded Academic ASAP. Thomson Gale. Univ of Mass Boston. 10 February 2006

(original page by jrc. All italics are mine, signifiying information that I consider is most relevant to the scenario)