The short answer
A fertility claim arises where a clinic, laboratory or practitioner did something that fell below the standard of competent professional practice, and that failure caused you loss the law recognises.
General information only — this article is not legal advice.
A cycle that simply does not work is not a claim. Most unsuccessful cycles involve no error at all.
Two routes can run at the same time. The first is negligence under the Wrongs Act 1958 (Vic). The second is the Australian Consumer Law, because private fertility treatment is a paid service supplied in trade or commerce, which carries a statutory guarantee that services are rendered with due care and skill. A consent form cannot sign that guarantee away.
Adults generally have three years from the date the claim becomes discoverable, which in fertility cases is often long after the treatment itself.
| Negligence | Australian Consumer Law | |
|---|---|---|
| Where it comes from | Wrongs Act 1958 (Vic) | Section 60 of the Australian Consumer Law, for services paid for in trade or commerce |
| What you have to show | A breach of the standard of care, causation, and harm the law recognises | That the service was not rendered with due care and skill |
| Can a consent form exclude it? | A consent form does not permit negligent treatment | No — section 64 makes the guarantees non-excludable |
| Usual difficulty | Causation is normally the hardest element | How the damages restrictions apply is less settled |
The two routes are not alternatives you must choose between at the outset. Which is stronger depends on the facts, and both are considered when a claim is assessed.
When does an IVF mistake become a claim?
IVF does not always work, and a cycle that fails is not, by itself, anybody's fault. Most unsuccessful cycles involve no error at all. A claim arises in a narrower situation: where a clinic, laboratory or practitioner did something that fell below the standard of care reasonably expected of them, and that failure caused you harm.
What makes fertility cases distinct is not the law but what is at stake. Embryos and gametes are irreplaceable, the treatment is expensive and physically demanding, and the window in which it can succeed is finite. An error that would be minor in another setting — a mislabelled container, a freezer left unmonitored, a test misreported — can permanently remove someone's chance of having a biological child.
What do you have to prove?
A negligence claim in Victoria requires four things:
- A duty of care. Rarely in dispute. A clinic and its embryologists, nurses and doctors plainly owe a duty to the patients they treat.
- A breach of the standard of care. Under s 59 of the Wrongs Act 1958 (Vic), a professional is not negligent if they acted in a way widely accepted by a significant number of respected practitioners in the field as competent professional practice. Importantly, a court can still reject a peer opinion it considers unreasonable. In practice this turns on expert embryology and clinical evidence measured against the clinic's own written protocols.
- Causation. Section 51 requires that the negligence was a necessary condition of the harm, and that it is appropriate for liability to extend to that harm. This is usually the hardest element in a fertility case, because a clinic will often argue the cycle would have failed anyway.
- Harm the law recognises. Financial loss, and psychiatric injury where it amounts to a recognised illness rather than understandable grief.
Is there also a consumer claim?
Private fertility treatment is a paid service supplied in trade or commerce, which means the Australian Consumer Law guarantees may apply alongside negligence — including a guarantee that services are rendered with due care and skill. Those guarantees cannot be signed away in a consent form. This is a genuinely useful alternative route, and we have set it out separately together with its limits: Is an IVF mistake a consumer claim?
How long do you have to claim?
Generally three years, running from when you knew or ought to have known that you had been harmed and that the harm was caused by someone's fault — not necessarily from the date of the error itself. That distinction matters more here than almost anywhere else, because clinic errors are frequently discovered long afterwards. There is also a twelve-year outer limit, and different rules for children. See Time limits for IVF and fertility claims.
What can a fertility claim recover?
The cost of treatment that was wasted, the cost of further treatment where that is reasonable, out-of-pocket expenses, lost income, and compensation for psychiatric injury where it is established. What it cannot do is put a price on the embryo itself — an embryo is not a legal person in Australia, and compensation is for your loss. See What compensation covers when an embryo is lost.
Is what happened to you an error at all?
That is usually the first real question, and it is not always obvious from the outside. We have set out the failures that can support a claim — and the ones that generally cannot — in What can go wrong in IVF.
How Clever handles fertility claims
These cases are often declined elsewhere, and the reason is economics rather than merit. They need specialist embryology evidence, which is expensive relative to the likely award, so a firm billing by the hour has little reason to take them on. We are set up differently: a free initial assessment, fixed pricing for each stage of the work so you know the cost before it is incurred, and no-win-no-fee representation with our fees capped.
We also make heavy use of a formal early settlement offer — the Clever Notice — which puts the cost of delay on the other side. Fertility providers are insured and are rarely eager to litigate matters of this kind in public. That makes a well-evidenced early offer a realistic way to resolve a claim without a hearing.
What to do now
Two things, in this order. Request your complete treatment records, including the laboratory records — you are entitled to them, and they are the evidence any claim turns on. Then have someone assess them.
Start your free assessment. There is no cost, no obligation, and no guaranteed outcomes — but you will get a plain answer.
Common questions
Is a failed IVF cycle a claim?
Generally not. IVF has a substantial failure rate even when every step is performed correctly, and a cycle that does not result in a pregnancy is not evidence that anything went wrong. A claim needs an identifiable failure in care, such as a mix-up, a mislabelling, a storage failure or a testing error, and it needs that failure to have caused loss the law recognises.
Can a clinic's consent form stop you making a claim?
No. Section 64 of the Australian Consumer Law makes the consumer guarantees non-excludable, so a term in a consent form or treatment agreement cannot remove the guarantee that a service will be rendered with due care and skill. Consent also does not permit negligent treatment. What consent can do is establish that a particular risk was explained to you, which matters if the harm was that risk materialising.
How long do you have to bring a fertility claim?
Generally three years, running from when you knew or ought reasonably to have known that you were harmed and that the harm was caused by someone's fault. That is often much later than the treatment itself, because storage failures, mix-ups and testing errors are frequently discovered years afterwards. A twelve-year long-stop also applies.
Can you be compensated for the loss of an embryo itself?
Not as the loss of a life. An embryo is not a legal person in Australia, so compensation is for your own loss rather than for the embryo. That means the cost of treatment that was wasted, the cost of further treatment where reasonable, out-of-pocket expenses, lost income, and psychiatric injury where a recognised illness is established.