The short answer
When an embryo is lost, compensation covers your own losses, not the embryo: wasted treatment costs, further cycles, lost income and injury to your health.
General information only — this article is not legal advice.
An embryo is not a legal person in Australia, so a claim is not valued as though a child had died, however that sits with how the loss actually feels.
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.
What the law compensates is money you spent that was wasted, money you will now have to spend, income you lost, and injury to your health including psychiatric injury where it amounts to a recognised illness. Grief and disappointment, however genuine, are not compensable on their own.
No figure can be given from a website, and anyone who offers you one without reading your records is guessing. What can be set out is the categories, and what evidence each of them turns on.
| Head of loss | What it covers | Evidence it usually turns on |
|---|---|---|
| Treatment already paid for | Cycles rendered pointless by the error, including drugs, procedures and storage fees | Clinic invoices and receipts |
| Further treatment | Additional treatment that is reasonable and would not otherwise have been needed | Treating specialist opinion on what is realistic |
| Out-of-pocket expenses | Travel, accommodation, medical and counselling costs | Receipts and records of attendance |
| Lost earnings | Time away from work for treatment, recovery or illness, past and future | Payslips, tax records and employer confirmation |
| Psychiatric injury | A recognised psychiatric illness, as distinct from grief | Psychiatric or psychological evidence |
| Care and assistance | Help you have needed because of your condition | Records of the care provided, including unpaid family care |
Which categories apply, and what each is worth, depends entirely on your own circumstances and evidence.
Can you be compensated for the embryo itself?
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 an IVF claim recover?
- 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 does this look 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 will nobody quote you a figure?
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 can you find out 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?
Common questions
How is an IVF claim valued?
From your own losses, category by category, rather than from a set figure attached to the type of error. That means the treatment you paid for that was wasted, the cost of further treatment where it is reasonable, your out-of-pocket expenses, income you lost, psychiatric injury where a recognised illness is established, and care you have needed. Each category has to be evidenced, which is why records matter more than accounts of what happened.
Can you claim for grief or disappointment?
Not on their own. Australian law compensates financial loss and injury to health, and for psychological harm it looks for a recognised psychiatric illness rather than distress. That distinction can feel arbitrary given what fertility treatment involves, but it is the line the law draws. Where the effect on you has been severe enough to be diagnosed, it is compensable and should be assessed properly.
What if a child was born as a result of the error?
Different questions arise, and they run well beyond money. Where the wrong embryo was transferred, or an embryo was transferred to someone else, the legal and personal issues are more complex than an ordinary compensation claim and can involve parentage as well as loss. These situations need advice on their particular facts at an early stage.
Do you need to know what your claim is worth before starting?
No. Working out what a claim covers is part of assessing it, not something you have to bring with you. After reading your records it is usually possible to say whether there is a claim worth investigating, what the substantial arguments against it are, and what finding out more would cost.