The Case of the Missing Embryo

Guest Article by Lisa Feldstein

I still remember the moment the phone rang. A woman I had never met was on
the line, crying and clearly distraught. She explained how she had walked into a fertility clinic that morning expecting to have her embryo transferred. Instead, a staff member returned to the room and told her the embryo was gone. It had been transferred into someone else.

No further details were shared with her. Not who. Not when. Not whether the pregnancy was ongoing. Not whether there had been a miscarriage, an abortion, or a baby already born. The clinic told her it couldn’t disclose anything because the other patient’s information was protected by Ontario’s Personal Health Information Protection Act (PHIPA), which permits disclosure of personal health information only with consent or in narrow circumstances permitted by law.

The embryo was her genetic material yet the result of the embryo transfer was someone else’s personal health information.

This is not a reported Canadian case, likely because these situations tend to settle quietly. But the global news over the past few years makes clear that embryo and gamete mix-ups are not as rare as we would like to believe. A Georgia woman recently sued after giving birth to another couple’s baby due to an IVF error. In Australia, there have been multiple reports embryo mix-ups, prompting public scrutiny and regulatory investigation. And the New York Times reporting on swapped embryos shows how families can be left with truly impossible choices even years after birth.

So what does bioethics do with a case like this where no solution feels satisfactory?

Reproductive Autonomy is the Core Harm

In my view, the primary moral injury in embryo mix-ups is a loss of
reproductive autonomy. This is not just “a mistake in a lab.” It is the
collapse of a person’s ability to decide whether, when, and how they
become a parent, and what happens to their genetic material.

Reproductive autonomy is the thread that ties together abortion law,
surrogacy law, donor conception, and embryo disputes. It is why
courts have repeatedly held that people cannot be forced into
procreation. In S.H. v. D.H., the Ontario Court of Appeal confirmed
that consent to use an embryo can be withdrawn before
implantation. In Singh v. Mount Sinai Fertility Corp., a couple was
unsuccessful in their efforts to have a court authorize the release of
their late son’s sperm to them, in part because he had not provided
written consent.

And yet, in K.L.W. v. Genesis Fertility Centre, a deceased man’s sperm
was provided to his widow, despite the absence of written consent,
because it was believed that doing so was consistent with his intentions
prior to death.

In all cases, reproductive autonomy is respected: the state does not
compel you to become a genetic parent against your will or unnecessarily
stand in the way of an individual’s right to procreate, even posthumously.
An embryo mix-up represents the opposite: instead of protecting
someone’s right to decide whether to procreate, it deprives someone of
the right to do so as they intended. That is exactly what legal scholar Dov
Fox describes as a distinct kind of “reproductive negligence” – a wrong
that disrupts family planning in ways that ordinary malpractice framing
fails to capture.

The Parentage Puzzle

The ethical tension cuts even deeper because fertility law doesn’t treat genetic connection as the single source of parenthood. Ontario’s Children’s Law Reform Act was updated in 2016 to explicitly recognize intention and social parenting in assisted reproduction. It provides that a person who provides sperm, eggs, or an embryo is not automatically a legal parent; instead, legal parentage follows pre-conception intention. 9

In most situations, that makes sense. It protects single parents, couples struggling with infertility, and queer families, where parenthood is planned in advance. But embryo mix-ups create a new dilemma. If DNA doesn’t matter much, are we prepared to say that the genetic parents must simply accept the loss because another family has already carried or raised the child? Although affirming this position largely aligns with Ontario’s current parentage framework, which prioritizes intention over genetic connection, it raises significant ethical concerns when the transfer occurs without consent.

Scholars have long debated whether parenthood should privilege genetics,
gestation, or intention. Embryo mix-ups force the question out of theory and into practice.

While courts consider pre-conception intentions 10 , they usually gravitate toward protecting the “best interests of the child,” which frequently means maintaining the status quo. 11 Even if that is sometimes the least harmful option for the child, it can still be a devastating moral injury to the genetic parents whose reproductive autonomy was overridden.

Privacy versus “the right to know”

Then there is the privacy wall that trapped my caller.

PHIPA is not a casual obstacle. It reflects a serious social commitment: patients must be able to seek care without fearing that their personal health information will be shared without their consent. In ordinary circumstances, that is a good thing.

But embryo mix-ups are not ordinary circumstances. The genetic parents are not curious bystanders; they are directly implicated in a pregnancy created from their embryo. Yet the recipient’s pregnancy status, health updates, and identity remain her personal health information.

The clinic cannot disclose it without consent (or, presumably, a court order), even when disclosure would help repair the devastation caused by the clinic’s own error.

So what should happen?

If privacy is absolute, the genetic parents are left with permanent uncertainty about their child’s existence. If privacy yields too easily, the recipient’s bodily autonomy and even safety are threatened.

There is no ethically clean line here— only tradeoffs, and real human suffering on both sides.

Where does that leave us?

Public sympathy naturally rushes to the genetic parents whose embryo was taken. But the recipient may be profoundly harmed too.

If she relinquishes a baby she carried, she is grieving a child she bonded with and imagined raising. If she keeps the baby, she may live in fear of contested parentage, wrestle with whether to disclose the truth to the child and worry that disclosure could lead to anger or a feeling that she is not the “real” parent. Either way, years of fertility struggle, money, and hope have been funneled into a pregnancy that undermined her reproductive autonomy.

Embryo mix-ups are a nightmare because they bring into conflict values that normally coexist: privacy, autonomy, and child welfare.

The woman who called me in distress? I referred her to a medical malpractice lawyer. I’m not in the business of suing clinics though I do occasionally advise them. And I can’t help but wish there were a publicized court decision to offer guidance on this difficult issue.

If these cases disappear into settlements, we never learn. Policy stagnates. Clinics keep treating errors as reputational crises instead of public-interest events. At minimum, I think we need:

• robust, mandatory safety standards across clinics (including two-person verification and tracking technologies),
• transparent critical-incident reporting to regulators and patients, and
• an ethical expectation that clinics actively support both families with counselling and mediated pathways for disclosure where possible

Above all, we need to keep reproductive autonomy at the centre. Whether a person is trying to
avoid a pregnancy, build a family through IVF, or navigate assisted reproduction in any form, the
moral claim is the same: your path to parenthood should not be decided by someone else’s mistake.

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References

Children’s Law Reform Act, RSO 1990, c C.12, https://canlii.ca/t/56mk2

Dominus, S. (2024, November 25). An I.V.F. Mix-Up, a Shocking Discovery and an Unbearable Choice. The New York Times. https://www.nytimes.com/2024/11/25/magazine/ivf-clinic-mixup.html

Fox, D., Alexander, L., Almeling, R., Barry, J., Bridges, K., Cahn, N., Calandrillo, S., Carbone, J., Claus, L., Coan, A., Cohen, I., Crossley, M., Daar, J., Dekker, T., Dillard, C., Epstein, R., Ertman, M., Fleischer, M., Fleischer, V., & Goodwin, M. (2017). REPRODUCTIVE NEGLIGENCE. https://columbialawreview.org/wp conten/uploads/2017/01/149.pdf

K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621 (CanLID, https://canlii.ca/t/gvynsx

M.R.R. v J.M., 2017 ONSC 2655 (CanLII), hitps://canlii.ca/t/h3g0p

Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A, https://canlii.ca/t/56mq1

Shepherd, T. (2025, June 10). Monash IVF admits second bungled embryo implant, this time at Victorian clinic. The Guardian; The Guardian.
https://www.theguardian.com/society/2025/jun/ 1 0/monash-ivf-admits second-bungled-embryo-implant-this-time-at-melbourne-clinic

S.H. v. D.H., 2019 ONCA 454 (CanLID), https://canlii.ca/vjOrxw

Singh v. Mount Sinai Fertility Corp., 2024 ONSC 2853 (CanLII), https://canlii.ca/t/k4vss

Sridhar, P., & Chuck, E. (2025, February 19). Woman sues IVF clinic after she birthed another couple’s baby. NBC News. https://www.nbcnews.com/health/health-news/woman-sues-ivf-clinic birthed-another-couples-baby-rcnal92642

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