By Dr. Johnny Sakr
Imagine discovering that the child you are raising is not genetically yours. Now imagine discovering that the embryo created for you, your last viable chance at having a biological child, was mistakenly implanted into someone else. These are not philosophical thought experiments. They are real events that have occurred in IVF clinics in the United States, Europe, and most recently in Israel.
When such embryo mix-ups happen, courts face an agonising question: who should be recognised as the legal parents? The genetic parents who intended to create a family? Or the gestational parents who carried, birthed, and raised the child?
In their recent Journal of Medical Ethics article, Prince and colleagues argue that the traditional presumption favouring genetics in parenthood disputes should be treated as rebuttable in favour of gestation, with final outcomes guided by the child’s best interests. I agree with much of their moral instinct — especially the recognition that pregnancy and caregiving matter profoundly. But IVF mix-ups, I argue, present a structurally unique problem. And that uniqueness demands a different solution.
The hidden architecture of IVF
Assisted reproduction is not simply a medical service. It is a consent-based allocation system. Embryos are created, labelled, stored, selected, and transferred under explicit agreements about who the intended parents are. That consent architecture is what makes IVF ethically and legally intelligible. Without it, embryo creation would be little more than biological roulette.
A mix-up therefore does not merely produce a dispute between two families. It represents a failure of an institutional system designed to allocate embryos to specific people. Any legal response must take that structure seriously.
If parenthood automatically follows gestation in all mix-up cases, clinical error becomes the event that determines family formation. The danger is subtle but important: mistakes start to replace consent as the organising principle of reproduction. That weakens accountability and risks normalising what should remain an exceptional institutional failure.
Two victims, not one
Gestational-priority arguments often emphasise non-consensual pregnancy — likening mix-ups to involuntary surrogacy. That concern is valid. But it captures only half the picture. In an embryo mix-up, both sides are victims of non-consent:
- The gestational parents did not consent to carry that embryo.
- The genetic parents did not consent to have their embryo implanted elsewhere.
The moral problem is symmetrical. Yet the loss is not identical. Genetic parents lose a unique reproductive opportunity that cannot be recreated. Gestational parents undergo pregnancy they did not choose. Both harms matter. Recognising that symmetry helps avoid framing these cases as contests where only one side can be seen as wronged.
Why time changes everything
What makes these disputes especially difficult is when the error is discovered.
If a mix-up is identified during pregnancy, the child has not yet formed attachments or a settled social world. If the same error is discovered two years after birth, the child already recognises particular adults as parents. Psychological stability now matters enormously.
Yet most existing proposals treat parenthood allocation as a single-stage decision: choose genetics, or gestation, or intent, and apply it uniformly. That misses the crucial role of time.
A time-sensitive hybrid model
In my paper, I propose a different approach.
At the moment an error is discovered, entitlement should follow the original IVF consent structure — meaning genetic-intentional parenthood supplies the default claim. This preserves predictability, protects reproductive agency, and keeps clinics accountable for correct embryo allocation.
But remedy should evolve with time.
If discovery occurs early, restoring the intended parenting project is usually feasible and minimally disruptive. If discovery occurs late, after years of caregiving and attachment, the child’s welfare and stability may justify preserving placement with the gestational parents — while still recognising genetic identity through transparency, records, and possible contact.
In short:
Consent determines entitlement.
Attachment shapes remedy.
Time links the two.
This approach avoids two extremes: rigid geneticism on one hand, and error-driven gestational determinism on the other. It also mirrors how family law already treats children’s best interests as increasingly weighty once real attachments form.
Why I wrote this paper
I began thinking about IVF mix-ups after reading court decisions that seemed to lurch between genetics, gestation, and best-interests reasoning without a consistent underlying logic. Each case felt like a tragic exception, yet the law treated them as ordinary custody disputes. That struck me as inadequate. IVF is a highly structured reproductive practice. When its structure fails, legal reasoning must reflect that structure — not ignore it.
The time-sensitive hybrid model emerged from trying to respect three realities at once: reproductive consent, institutional accountability, and the child’s lived world.
Looking ahead
Assisted reproduction will only become more common. With scale comes the statistical certainty of further clinical errors. The question is not whether we will face more embryo mix-ups — but whether we will have coherent principles ready when we do.
Prince and colleagues are right to challenge genetic default thinking. My contribution is to suggest that time itself must enter the ethical architecture of parenthood allocation. Not everything should be decided at the same moment, under the same rule.
Sometimes justice means asking not only who, but when.
Paper title: A Time-Sensitive Hybrid Model for Parent Allocation in IVF Embryo Mix-Ups
Author: Johnny Sakr
Affiliations: Prince Sultan University
Competing interests: None declared.
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