IVF Mix-Up: Woman Unknowingly Implanted With Another Couple’s Embryo
Krystena Murray experienced the unimaginable shortly after childbirth. Despite being Caucasian, like her chosen sperm donor with blond hair and blue eyes, her newborn son had a noticeably darker complexion.
“He was beautiful and perfect,” Murray recounted, “but it was also immediately apparent that something was amiss. My hope was that it was merely a sperm mix-up.”
The in vitro fertilization (IVF) journey had been arduous for Murray, now 38. She had undergone numerous daily injections, frequent blood tests, bouts of nausea and fatigue, an initial failed embryo transfer, and ultimately, pregnancy and delivery.
However, a subsequent DNA test revealed a devastating truth: the Georgia-based fertility clinic had implanted a different couple’s embryo. Heartbroken, Murray relinquished the baby to his biological parents after five months of motherhood.
“We convened in court, and the decision was formalized,” she explained. “I entered as a mother with a child, a baby who loved me and was intrinsically mine, and I exited the building with an empty stroller. They departed with my son.”
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Murray initiated legal proceedings against the clinic the previous month.
While incidents like Murray’s are believed to be infrequent, an analysis by NBC News of federal and state legal records uncovered over 300 lawsuits filed between 2019 and 2024. These lawsuits allege loss, destruction, or swapping of embryos, eggs, or sperm. Filed across 19 states against fertility clinics and companies involved in IVF, the majority – at least 260 – cited product or equipment malfunctions.
Legal experts suggest that the surge in cases is partially attributed to the industry’s rapid expansion. The number of births resulting from assisted reproductive technology (ART), including IVF, has more than quadrupled from 1996 to 2022. Fertility procedures have increased over sixfold. Market research indicated the U.S. fertility industry’s value at $5.7 billion the preceding year.
IVF operates with less regulatory oversight compared to other medical fields, according to legal experts. For instance, despite over half of U.S. states mandating hospitals to report significant, preventable medical errors, IVF clinics are exempt. Furthermore, embryology laboratories are not subject to federal inspections akin to blood banks; instead, accreditation organizations primarily conduct inspections.
Adding to the complexity, a clear legal framework for lost or wrongly implanted embryos is absent, unlike medical malpractice for healthcare provider errors. Consequently, IVF patients often face difficulties seeking recourse when errors occur.
Few lawsuits from the NBC News review have proceeded to trial. Of those resolved, settlements or dismissals were the most common outcomes.
Adam Wolf, Murray’s legal representative, anticipates a rise in similar cases, citing insufficient state and federal regulations governing fertility clinics and laboratories.
“Until IVF clinics are subjected to robust regulations, reporting mandates, and mandatory staff certification programs, these errors will persist,” he asserted at a recent news conference.
Wolf is part of a growing collective comprised of former IVF patients, attorneys, bioethicists, and even some anti-abortion advocates advocating for enhanced IVF regulation. As demand escalates, increased oversight is deemed necessary for the industry to maintain safety and accountability.
“Perhaps with enough voices, stronger regulations and protocols will be implemented,” stated Marissa Calhoun, 36, who initiated legal action against her Los Angeles fertility clinic in the fall. Her lawsuit alleges that her embryos, intended for family building, were mistakenly discarded. “That’s my only hope.”
The Enigma of IVF Error Frequency
Calhoun’s endometriosis diagnosis in her teens—a condition impacting fertility—led her to IVF. By 35, she had endured three painful egg retrieval procedures.
She and her partner, Stephen Castaneda, were overjoyed in late 2023 to learn that 16 of Calhoun’s eggs had been successfully fertilized.
However, days later, Calhoun’s physician called with devastating news: “He informed me all my embryos were discarded due to a lab error,” she recounted. “Words failed me. The weight of my medical condition, the years invested in egg collection… I can’t articulate the emotional upheaval. I was inconsolable.”
Calhoun’s lawsuit alleges a laboratory employee’s failure to properly label her embryos before incubation, resulting in their disposal.
Reproductive Partners Medical Group, the clinic in question, declined to comment on active litigation but refuted the allegations in court filings. A judicial conference is scheduled to determine subsequent steps.
NBC News’ analysis identified 82 lawsuits related to alleged human errors, such as Calhoun’s, between 2019 and 2024, and 13 involving swapped embryos, eggs, or sperm.
Product and equipment failures accounted for 176 cases, predominantly stemming from a 2018 storage tank malfunction at Pacific Fertility Center in San Francisco. This incident resulted in the destruction of roughly 2,500 eggs and 1,500 embryos.
Chart Industries Inc., the tank manufacturer, contested claims of defects in a class-action lawsuit. Prelude Fertility, the clinic’s parent company, denied negligence allegations.
“Prelude and Pacific Fertility Center maintain that the 2018 storage tank failure arose from a defective tank,” stated Alexandra Preece Barlow, attorney representing Prelude in the class action.
Many lawsuits against the clinic proceeded to arbitration. However, in one case that reached trial, a jury found Chart and Pacific Fertility Center negligent, awarding five former patients $15 million. Chart appealed and subsequently reached confidential settlements in this and other cases.
Chart, Prelude Fertility, and Pacific Fertility Center did not respond to requests for comment. However, the clinic issued a statement to NBC Bay Area shortly after the incident expressing profound regret and initiating an independent investigation.
Over 50 additional lawsuits in NBC News’ analysis involved claims that a specific liquid used to support fertilized egg development destroyed hundreds of embryos. CooperSurgical, the solution’s manufacturer, issued recalls for several lots the previous year.
CooperSurgical did not provide comments but stated to NBC Connecticut last year that the recall was a proactive measure during issue investigations. The company denied liability in response to an ongoing Ohio lawsuit and has not yet formally responded to Connecticut cases, according to plaintiff attorneys.
The actual frequency of IVF-related accidents remains unclear because mandatory reporting to federal or state agencies is absent. No national database tracks such incidents.
Many IVF patients agree to resolve disputes through arbitration rather than litigation, explained Tiseme Zegeye, representing numerous patients suing CooperSurgical.
“We only become aware of a fraction of fertility industry errors because numerous patients sign arbitration agreements with their clinics,” she said.
Regarding regulatory oversight, states generally do not require specific licenses for IVF clinic operation. Conversely, the United Kingdom employs a regulatory body that licenses and approves procedures offered by fertility clinics.
The Food and Drug Administration (FDA) does inspect facilities storing eggs and embryos, mandating disease testing for donor eggs and sperm. IVF clinics must also report annual pregnancy success rates to the Centers for Disease Control and Prevention (CDC), which publishes this data.
Many clinics and labs adhere to voluntary guidelines from the American Society for Reproductive Medicine (ASRM), a professional organization of fertility specialists. These guidelines include policies for error disclosure to patients.
Countering the characterization by some legal experts, Sean Tipton, ASRM’s chief advocacy and policy officer, argued that “fertility care regulation mirrors that of general medicine in the U.S.” and that lawsuits are “a crucial element” of this system.
ASRM declined specific inquiries regarding fertility industry lawsuits.
Legal Ambiguity Surrounding IVF Errors
Murray relinquished custody of the baby in May, acknowledging the near certainty of losing a custody battle. She described it as the most agonizing experience of her life.
“Your entire existence revolves around your child. Everything is rearranged. Every moment is dedicated to him. Then, suddenly, he’s gone,” Murray conveyed.
Coastal Fertility Specialists, the clinic involved, expressed “deep regret for the distress caused by an unprecedented error resulting in an embryo transfer mix-up.” They have yet to formally respond to the legal complaint.
Dov Fox, director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law, explains that IVF lawsuits pose challenges because courts often categorize errors as unfortunate accidents rather than breaches of patient care duty.
“Courts have been hesitant to recognize reproductive interests as genuinely significant, hindering the development of enforceable practice standards and expectations akin to other healthcare domains,” Fox explained.
In contrast to medical errors like retained surgical sponges, often pursued as medical malpractice, embryo loss cases face difficulty, rarely resulting in physical harm. Instead, they are typically categorized as negligence or property damage, potentially understating the emotional toll on couples.
Courts also tend to disfavor breach of contract claims against clinics, as they do not guarantee IVF success, he added.
The IVF industry has historically opposed increased regulation, asserting that error rates are comparable to other medical fields.
“The industry, overall, is progressing toward safer practices—not implying prior unsafety, but continuously improving,” stated Brent Barrett, chief laboratory director at Boston IVF, a network spanning over 15 fertility centers across New England.
Barrett noted common clinic protocols including equipment placement guidelines and dual verification for labels and embryo dishes. Electronic tracking systems employing barcodes for eggs, embryos, and sperm are also increasingly adopted.
However, these measures lack federal mandate.
“Clinics retain the option to utilize basic methods, like pencil and paper, for specimen labeling if desired,” Fox highlighted.
The Contentious Debate Over Embryos and IVF Regulation
Reproductive rights advocates harbor reservations regarding amplified IVF regulations, fearing the potential for intensified debates on the legal status of embryos as babies.
This issue was central to an Alabama wrongful death lawsuit against a fertility clinic following an incident involving dropped embryos. The Alabama Supreme Court subsequently ruled that IVF-created embryos are legally children.
The ruling triggered temporary IVF service suspensions by multiple clinics until state lawmakers enacted legislation protecting providers discarding embryos. Discarding embryos with genetic abnormalities or those no longer needed is a routine IVF component, though opposed by anti-abortion groups.
“IVF is entangled in personhood and abortion dialogues in the U.S., complicating discourse compared to regions like the U.K.,” commented Danielle Pacia, research associate at The Hastings Center, a bioethics research institute.
Zegeye acknowledged the risk of overregulation hindering clinic functionality—as seen in Alabama—when advocating for IVF regulations.
“Finding a balance that protects patients while ensuring healthcare access is crucial,” she stated.
The Alabama situation, unfolding during an election year, propelled these discussions into the national spotlight.
Both Republicans and Democrats introduced IVF bills in the Senate the prior year. The Democratic bill aimed to federally codify IVF access, while the Republican bill proposed withholding Medicaid funds from states prohibiting IVF. Neither bill progressed.
Kamala Harris and Donald Trump voiced IVF access support during their campaigns, with Trump suggesting government or insurance coverage. President Trump recently issued an executive order to lower IVF costs by, in part, reducing regulation.
“It is my Administration’s policy to guarantee dependable IVF treatment access, including easing unnecessary statutory or regulatory burdens to make it more affordable,” the order stated.
Following this announcement, several anti-abortion groups advocated for increased industry oversight.
“America’s IVF industry lacks regulation,” Kristan Hawkins, president of Students for Life of America, stated on X. “With President Trump’s funding intentions, shouldn’t regulation be a logical, minimum step for the Trump Administration?”