The short answer
The limit is generally three years, but it runs from the date the claim became discoverable rather than the date of the error.
General information only — this article is not legal advice.
In fertility cases that difference is rarely academic, because laboratory errors are invisible to the patient and are often discovered years later.
Discoverability means the date you knew, or ought reasonably to have known, that you had suffered harm, that the harm was caused by someone's act or omission, and that it was serious enough to justify bringing proceedings. If you have only just found out, you may be well within time even though the error itself is old.
An outer limit still applies. A long-stop of twelve years generally bars a claim regardless of what you knew, and different rules govern children and people under a disability.
| How the error came to light | When the three years generally starts |
|---|---|
| The clinic disclosed it to you | When you were told, even if the error happened years earlier |
| A discrepancy emerged when records moved | When you learned of the discrepancy, not when the record was created |
| A group proceeding or report named your clinic | When you had reason to connect it to your own treatment |
| You suspected at the time and did not pursue it | Potentially much earlier, which is why delay is risky |
Discoverability is judged on your particular facts and is frequently contested. Treat this as orientation and get the date checked rather than assumed.
How long do you have?
A claim for personal injury in Victoria must generally be brought within three years. Under the Limitation of Actions Act 1958 (Vic), that period runs from the date of discoverability: broadly, when you first knew or ought to have known that you had suffered an injury, that it was caused by the act or omission of someone else, and that the injury was sufficiently serious to justify bringing a claim.
So the clock does not necessarily start on the day the mistake was made. It starts when a reasonable person in your position would have appreciated that something had gone wrong and that someone was responsible.
Why does discoverability matter so much here?
In most medical claims the patient knows something has happened, even if not why. In fertility cases people frequently do not. Errors in a laboratory are invisible to the patient. Embryos are stored for years. A clinic's own account may be that a cycle simply failed.
People commonly discover an error in one of three ways: the clinic discloses it, sometimes long afterwards; a discrepancy emerges when records are transferred to another provider; or a class action or news report prompts them to ask questions about their own treatment. Each of those can be years after the event. In the Bopping v Monash IVF proceeding, the underlying testing took place across 2019 and 2020 and the litigation ran into 2025.
Two consequences follow. If you have only just found out, you may be well within time even though the error is old. And once you do suspect something, the clock is probably running — so delay from that point is the risk, not delay before it.
Is there an absolute deadline?
Discoverability does not extend indefinitely. There is a long-stop period of twelve years from the act or omission, after which a claim is generally barred whatever you knew. For treatment provided years ago, that outer limit can be the operative constraint.
Children and people under a disability
Different rules apply where the injured person is a child or is under a disability — including how the period is calculated and when it begins. Where an IVF error has affected a child who was born, the child's own position needs to be assessed separately from the parents'.
What if time has already run out?
It may not be fatal. A court has a discretion to extend the limitation period in limited circumstances, and whether that discretion would be exercised depends heavily on the reason for the delay and whether the other side can still fairly meet the claim. It is not something to count on, but it is a reason to get advice rather than assume the door is shut.
A separate practical point
Limitation periods are the legal deadline. The real deadline is often earlier, because evidence degrades: storage logs and monitoring data may be retained only for a period, staff move on, and memories fade. The strongest version of a claim is almost always the one investigated soonest.
If you think something may have gone wrong, the useful first step is to request your records — including the laboratory records — and have them read. See What can go wrong in IVF, Time limits for medical negligence claims, or start a free assessment.
Common questions
When does the three-year time limit start for a fertility claim?
From the date the claim became discoverable, not the date of the error. That is when you knew, or ought reasonably to have known, that you had suffered harm, that it was caused by someone's act or omission, and that it was serious enough to justify proceedings. In fertility cases that is very often the day the clinic told you something had gone wrong, or the day a discrepancy surfaced in your records.
What is the twelve-year long-stop?
An outer limit that applies regardless of what you knew. A claim is generally barred twelve years after the act or omission complained of, even if you only discovered the problem recently. For treatment that took place a long time ago, the long-stop rather than the three-year period is often the real constraint, which is why an old error is worth raising sooner rather than later.
What if you only just found out about an old error?
You may still be in time. The three-year period generally starts when you found out rather than when the error occurred, so a recent discovery of an old mistake can leave you well within the limitation period. The twelve-year long-stop is the separate question, and whether it has been passed depends on the date of the treatment rather than the date of discovery.
Can a court extend the time limit?
Sometimes. A court has a discretion to extend the limitation period in limited circumstances, and how it is exercised depends heavily on the reason for the delay, how long the delay was, and whether a fair trial is still possible. It is a discretion rather than an entitlement, so running out of time is a serious problem even though it is not always fatal.