The short answer
An IVF failure supports a claim when it was caused by something the clinic or laboratory did wrong, rather than by the biology of treatment that often does not work.
General information only — this article is not legal advice.
That is the line, and almost every fertility enquiry turns on which side of it the facts fall.
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.
Errors that can support a claim include embryo and gamete mix-ups, mislabelling, specimens lost or damaged in the laboratory, cryostorage failures, genetic testing errors, consent and information failures, stimulation medication errors, and donor or administrative errors. Each is set out below.
What generally does not support a claim is a cycle that simply did not work, an embryo that did not implant, or a risk that was properly explained to you and then occurred. Distress on its own is not compensable either, however genuine, unless it amounts to a recognised psychiatric illness.
| What happened | What it usually indicates |
|---|---|
| A cycle did not result in a pregnancy | Biology. IVF fails often even when every step is performed correctly |
| Embryo or straw numbers do not reconcile | An identification or labelling failure, worth investigating |
| Storage records show a temperature excursion | A possible cryostorage failure, worth investigating |
| A genetic test result was later revised | Possibly a testing error, or a limitation that was never explained |
| A risk you were warned about occurred | Generally an accepted risk rather than negligence |
None of these settles anything on its own. Each is a reason to obtain your records and have them read.
Which failures 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 is usually 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.
What are the signs worth investigating?
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.
Common questions
How do you tell an IVF error from bad luck?
By the records rather than the explanation. Embryology worksheets, witnessing logs, cryostorage temperature records, laboratory reports and consent documents either reconcile with what you were told or they do not. Biology explains a cycle that fails, an embryo that does not develop, and a disclosed risk that occurs. It does not explain numbers that do not match, a witnessing step that was never performed, or an alarm that was not acted on.
The clinic called it an incident. Does that mean it was negligent?
Not by itself. Clinics are required to record and review adverse events, and an internal incident report is a sign the service has already examined what happened rather than proof that it fell below the standard of care. It is a strong reason to obtain the records, because the report and the underlying documents are usually the clearest account of the event that exists.
What if you only found out after moving to another clinic?
That is a common way these problems surface, and it does not weaken a claim. Time generally runs from when you knew or ought reasonably to have known that you were harmed and that someone was at fault, not from the date of the error. Discovering a discrepancy on transfer is often the moment the clock starts. See Time limits for IVF and fertility claims.
Which records should you ask for?
Ask for the complete treatment file, and name the laboratory material specifically: embryology worksheets, witnessing logs, cryostorage and alarm records, genetic testing reports, consent documents, and any internal incident report. A request for the clinical notes alone often will not produce the laboratory records, and those are usually the documents a claim turns on. How to get your medical records in Victoria explains the process.