People rarely arrive knowing whether what happened to them was an error or simply bad luck. This page sets out the failures that can support a claim, and — just as importantly — the ones that usually cannot.
Eight failures that can support a claim
- Embryo or gamete mix-up. The wrong embryo transferred, or the wrong sperm or eggs used. The industry's own accreditation standard, the RTAC Code of Practice, treats an event arising from a gamete or embryo identification mix-up as a serious adverse event — which is to say the sector itself does not regard this as an ordinary risk of treatment.
- Mislabelling and identification failures. Straws, dishes and containers incorrectly labelled, or witnessing steps not performed. Clinics operate double-witness protocols precisely because the consequences are irreversible.
- Eggs or embryos lost, dropped or damaged in the laboratory. Physical mishandling, contamination, or a specimen discarded in error.
- Cryostorage failure. Tank or freezer failure, nitrogen not replenished, alarms not monitored or not acted on, temperature excursions during storage or transport.
- Genetic testing errors. Viable embryos wrongly reported as abnormal and discarded, or a test's limitations not explained. This is the substance of the allegations in the Bopping v Monash IVF group proceeding in the Supreme Court of Victoria, which concerned non-invasive pre-implantation genetic testing said to carry an undisclosed risk of false positives.
- Consent and information failures. Not being told of a material risk, of a test's limitations, or of an alternative you would have chosen. Section 60 of the Wrongs Act 1958 (Vic) deals with the duty to warn, and the underlying principle comes from Rogers v Whitaker: the question is what a reasonable patient in your position would want to know.
- Medication and dosing errors in stimulation. Wrong drug, wrong dose, or a failure to monitor and respond to ovarian hyperstimulation syndrome.
- Administrative and donor-related errors. Wrong donor material used, screening not performed, records lost, or donor limits and consents not observed.
What usually is not a claim
This distinction is worth being clear about, because it saves people from months of false hope.
- A cycle that simply does not work. IVF has a substantial failure rate even when everything is done correctly.
- Embryos that do not develop, or a normal-looking embryo that does not implant. Biology, not error.
- A disappointing outcome after a properly explained risk. If the risk was disclosed and materialised, that is generally not negligence.
- Distress alone. Grief and disappointment, however genuine, are not compensable in themselves; the law looks for financial loss or a diagnosed psychiatric illness.
Signs worth having looked at
None of these proves anything, but each is a reason to ask questions:
- The clinic contacted you about an "incident" or "adverse event"
- You were told something went wrong in the laboratory
- Embryo or straw numbers do not reconcile across your records
- A genetic test result was later revised
- You learned of a problem only when transferring to another clinic
- The explanations you have received have changed over time
What settles it
Not the clinic's account, and not ours — the records. Embryology worksheets, witnessing logs, cryostorage temperature records, laboratory reports, consent documents, and any internal incident report. Those documents either reconcile or they do not.
If something on this page describes your situation, the next questions are whether it is still in time and what it might be worth — see IVF and fertility clinic claims and Time limits for IVF and fertility claims. Or start a free assessment.