This is the question people most want answered and the one least honestly addressed. We will not put a figure on it, because anyone who does without seeing your records is guessing. What we can do is explain what compensation is actually for — and it is probably not what you expect.
Start with the hard part
An embryo is not a legal person in Australia. There is no compensation for the loss of an embryo as a life, and a claim is not valued as though a child had died. Some people find that difficult to hear, and understandably so, because it does not reflect what the loss feels like.
What the law compensates is the loss to you: money you spent that was wasted, money you will now have to spend, income you lost, and injury to your health, including psychiatric injury. Understanding that early prevents a great deal of disappointment later.
What can be recovered
- Treatment costs already incurred. The cycle or cycles rendered pointless by the error — clinic fees, drugs, procedures, storage fees, scans and tests.
- The cost of further treatment. Where further treatment is reasonable and would not otherwise have been needed. This is often the largest financial component, and it is also where the argument is: a clinic may say you would have needed more cycles anyway.
- Out-of-pocket expenses. Travel, accommodation, medical and counselling costs.
- Lost earnings. Time away from work for treatment, recovery, or because of psychiatric injury — past and, where established, future.
- Psychiatric injury. Where the effect on you amounts to a recognised psychiatric illness rather than grief or disappointment. This ordinarily needs psychiatric or psychological evidence, and there are statutory thresholds and limits that apply to damages of this kind in Victoria.
- Care and assistance. Where your condition means you have needed help.
- Where a child was born. Different questions arise again — including, in some circumstances, the costs of raising a child, which the High Court has held can be recoverable in a claim arising from a negligently caused pregnancy.
What this looks like in practice
Compensation is worked out from your situation, not from a category. Four of the most common ones:
- Your embryos were lost or destroyed, and you have none left. The claim usually centres on the treatment already paid for, the cost of starting again where that is realistic, and the effect on your health. Where starting again is not realistic, the medical evidence about what was taken from you becomes the substance of the claim rather than a footnote to it.
- Viable embryos were discarded after a genetic test. Often the embryos were reported as abnormal and you agreed to discard them on that basis. Here the focus is the cycles that produced them, the testing you paid for, and the further treatment now needed. Many people in this position only learned of the issue years later, through a clinic disclosure or news of a class action — which affects time limits more than it affects value.
- You froze eggs, sperm or embryos before cancer or other medical treatment, and they were lost. This is the hardest version, because it often cannot be repeated — the treatment that made storage necessary may also have removed the ability to try again. The claim reflects that permanence.
- The wrong embryo was transferred. Whether you gave birth to a child who is not genetically yours, or your embryo was transferred to someone else, the questions here run well beyond money and into parentage. If this is your situation, please contact us directly rather than relying on a general page.
How you actually get paid — the Clever Notice
Knowing what a claim covers is one thing. Getting it paid is another, and it is where most fertility claims stall: the sums are modest, the expert evidence is expensive, and a clinic with insurers behind it can afford to wait longer than you can.
Our answer is a formal early settlement offer — the Clever Notice. Once we have your records and the evidence to support a figure, we put a properly particularised offer to the clinic and its insurer early, on terms that make delay cost them rather than you. Fertility providers are insured and are rarely eager to litigate matters of this kind in public, which makes a well-evidenced early offer a realistic route to resolution without a hearing.
That is also why we can take on claims other firms decline. It is not that they doubt the wrong. It is that hourly billing makes a modest claim uneconomic to run. Fixed pricing for each stage, and a fee capped as a proportion of what you recover, changes that arithmetic.
Why we will not quote a range
Because there is almost no public Australian precedent to quote. Very few claims of this kind produce a reported judgment — they resolve confidentially. Anyone offering you a figure from a website is either guessing or working from another country's law. What determines the value of your claim is your records, your treatment history, and the medical evidence about the effect on you.
What we can tell you early
After reading your records we can usually say whether there is a claim worth investigating, what the substantial arguments against it are, and what it would cost to find out more.
We will also be straight with you about the limits. The loss people feel most sharply — the chance of having a child — is the hardest thing to put a value on, because Australian law has been reluctant to award damages for a lost chance in injury cases. Where embryos were destroyed and no others exist, that argument is real and worth making, but it is not straightforward and we will not pretend otherwise.
The assessment is free, and there is no obligation to proceed. See also IVF and fertility clinic claims and What compensation can you recover for medical negligence?