Mar 21, 2022 5 min read

Editor’s note: Syndicated columnist Diane Dimond is on sabbatical. The following was written in 2019.

We live in a remarkably overregulated world. Yet, almost unbelievably, there are few hard-and-fast laws to protect those who want to create a baby the nontraditional way. When something goes wrong following a surrogate or in vitro arrangement, the aggrieved parties often find themselves in a murky space without a clear-cut legal leg to stand on.

Consider the case of an Asian couple from New York. In a 2019 medical malpractice lawsuit, they revealed that after spending some $100,000 dollars on in vitro fertility treatments, they gave birth to two male babies that were obviously not of Asian descent. Further, DNA tests proved the two implanted embryos were not related to each other! The breastfeeding wife and her husband were then forced into the painful position of having to surrender both babies to two different biological parents who were also customers of the same California-based IVF treatment center. The Asian couple still doesn’t know what happened to their embryos, the ones that were supposed to have been implanted in the wife’s womb.

Were their children born to other unsuspecting couples? The lawsuit they filed could take years to wind its way through the courts, and of course, it likely won’t give the Asian couple what they really crave: a biologically related child of their own.

According to experts, more than 1 million babies have been born in the U.S. using in vitro technology. And there is a growing list of aggrieved and financially tapped-out IVF clients.

A Caucasian couple in New Jersey who had a daughter via IVF says they spent $500,000 on fertility treatments before giving birth. In a lawsuit against their IVF clinic, the couple said that when their child was about 2 1/2, she developed “Asian features.” Subsequent DNA tests proved the husband was not the child’s father. The “great pain and suffering” caused by the clinic’s mix-up caused the couple to divorce.

In Ohio, three people are suing a Cincinnati fertility clinic: a husband and wife and their 24-year-old daughter who was conceived via IVF. The daughter says she feels guilty because the DNA tests she bought as Christmas gifts revealed she’s not related to the man she has called Dad all her life. Her mother now lives with the shocking knowledge that her egg was fertilized with a stranger’s sperm and then inserted into her womb.

In Illinois, a now divorced mother of two sons who both struggle with autism sued the company from which she got the sperm of Donor H898. After considerable study, she and her same-sex partner chose that donor because he self-described as tall, blond, highly educated, athletic and having no health problems. Court documents say much of that was a lie and the clinic allegedly took no steps to verify whether the donor’s profile was accurate. The mother’s attorneys wrote that “Donor H898 is a prolific sperm donor who has fathered at least 12 children through sperm donation, and that each of those children has either been diagnosed with Autism or suffers from signs and symptoms associated with Autism.” Turns out the donor had no college degrees and “went to a school for children with learning and emotional disabilities.” After years of struggle, this mother received $250,000 from the IVF company, much of which went to her lawyers.

I could recount countless more of these horror stories, but you get the idea.

This is not to condemn the practice of in vitro fertilization, but realize it is a monumentally complex procedure. Human error is not uncommon, according to IVF expert Jake Anderson. He and his wife struggled through the process and now run FertilityIQ, a website curating IVF information and a nationwide bank of doctors’ ratings.

“It’s this agonizing process to grow embryos,” Anderson told CBS News. “And it involves almost over 200 different steps, and when you assume this happens to thousands of patients every year within that laboratory, all of a sudden you’ve got a lot of moving parts.” In vitro fertilization treatments are also monumentally expensive, so finding a properly educated physician is paramount.

The first “test tube” baby was born in England in 1978. The U.S. followed in 1981. Yet, there are still no laws that make an IVF laboratory mix-up a criminal offense. Government oversight of the industry today remains mostly nonexistent. As the Yale Scientific Magazine put it, the government’s preferred position is “simply engaging as little as possible in the process.” Of course, those who discover they were the victim of a laboratory mistake can always file a civil lawsuit, but hiring a lawyer would surely add to their already significant financial burden.

No doubt, there are hundreds of thousands of couples happy and fulfilled after choosing to create their families with the help of modern science. But armed with the facts as presented here, it’s best to remember two old sayings: “Forewarned is forearmed” and “Buyer beware.”