District Court rules to keep IVF child with birth mother following embryo mix-up
Lower court had ordered custody of 2-year old ‘Sophia’ be given to genetic parents; latest ruling accepted appeal, says birth mother’s parental rights to be given preference
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The Central District Court overturned a lower court decision in the IVF mix-up scandal on Monday, and ruled that a 2-year old girl born in 2022 following an embryo transfer mistake at an Assuta IVF clinic must remain with her birth parents, who have been raising her, and not given to her genetic parents.
The ruling, which is the latest twist in the emotional and long-running saga, reversed a decision by the Rishon Lezion Family Court in November last year, which ruled that the young girl, whose name is given only as Sophia, be transferred to the custody of her genetic parents, after being raised for over two years by her birth mother and her partner.
In Monday’s decision, the Central District Court noted what it termed the “great devotion” of the birth mother to Sophia, and said that the ethical principle in such cases should be that a child should not be removed from the care of the woman who gave birth to the infant.
The judges added, however, that Sophia’s genetic parents be able to keep in close contact with her and that she should be told what happened to her, at an appropriate age.
The genetic parents have the right to appeal to the Supreme Court.
Sophia has been raised by the woman who gave birth to her and the woman’s husband since she was born in 2022. The couple obtained an implementation suspension of the family court’s 2024 ruling while they appealed, and she has never left their custody.
The mix-up at Rishon Lezion’s Assuta Medical Center in 2022 was discovered when the then in-utero fetus was determined to have medical problems, and subsequent tests revealed that neither the woman carrying the child nor her husband could be the biological parents of the fetus.
The Rishon Lezion Family Court ruled in November 2024, based on an professional opinion submitted to the court, that Sophia’s genetic parents were her “natural parents” and that it was “best for a child to be raised by them.” A second professional opinion had recommended that Sophia remain with her birth parents.
The three-judge panel of the Central District Court ruled on Monday that the parental rights of the birth mother and her husband should be given preference over that of the genetic parents since, they wrote, “we are dealing with a mother who conceived and carried the minor in her womb without knowing about the mistake that had occurred.”
The court also noted that the birth mother risked her life for the baby when the woman was pregnant with her. She had agreed to have surgery performed on the fetus during the pregnancy, despite recommendations of doctors to abort the pregnancy, and the surgery put the birth mother’s life at risk.
“She gave birth to the girl, and together with her partner, she raised her with great devotion, devoting their time to [the child’s] health and physical and mental development,” the judges wrote.
They added that “from an ethical perspective,” a principle should be adopted that “just as one does not remove a fetus from the womb of the mother bearing [it], so too one does not remove the child from her hands.”
The judges added, however, that, in accordance with the recommendations of professionals, there was “great importance” for Sophia to “learn and know the story of her life” at an appropriate age, and that her genetic parents be able to have close contact with her, “in accordance with arrangements to be determined by the welfare services.”
Attorney Galit Kerner, who represented the birth mother and her husband, welcomed the ruling, stating that the court had “established that it is not appropriate to separate a mother and father from their daughter, whom they gave birth to, and are raising with love.”
Sophia’s genetic parents said they were “shocked and pained” by the decision, and that the message from the district court was that “not only are mistakes and injustices not corrected, but they are sanctioned and perpetuated under the cover of the state,” Ynet reported.
They added that they believed it would be in the child’s long-term best interest to grow up “amid her biological family,” adding that they would examine their options “to correct this injustice.”
A Health Ministry probe into the 2022 incident at the Assuta Medical Center in Rishon Lezion, published in March 2023, pointed to significant breaches in protocol, due to the heavy workload there, resulting in the embryo mix-up.
In parallel to the testing, the couple raising the baby filed a lawsuit against Assuta for NIS 10 million ($2.8 million) over the mishap.
While the committee’s investigation was underway, the Health Ministry demanded in October 2022 that the medical center’s fertility department reduce its operations by 50 percent — from 10,000 fertilization treatments a year to 5,000.
A series of disturbing errors also came to light in the IVF department of the Assuta Medical Center in Tel Aviv. As a result, the Health Ministry barred the clinic from accepting new patients.
