Supreme Court upholds decision to keep IVF child with birth mother following embryo mix-up

The Supreme Court upholds a lower court decision and decides that the legal parents of Sophia, an infant girl born in 2022 following an embryo implantation mistake, are her birth mother and her partner, and not her genetic parents.

In the four-to-one decision, the court also approves the Lod-Central District Court’s determination that a special framework be established to enable Sophia’s genetic parents to keep in close contact with her.

Writing for the majority, Judge Yael Wilner says that there is a lacuna in the law for the embryo implantation mistake situation. But since a clause in the law for surrogacy establishes that the birthing mother is the legal mother of a baby if she withdraws from the surrogacy agreement with the genetic parents, that law can be applied to the current case, writes Wilner.

The judge also writes that Sophia’s birth mother and her partner had already established a parental connection to the baby before her genetic parents were able to seek custody.

The judge writes that the good of the child justifies leaving her in the care of her birth mother and partner due to “the fact that the young girl has lived with them from the day of her birth and sees them as her father and mother,” a summary of the ruling issued by the court says, as well as Sophia’s “complex medical situation.”

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. After undergoing tests, it was discovered that neither the woman carrying the child nor her partner could be her biological parents.

The Rishon Lezion Family Court ruled in November 2024, based on a 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 Lod-Central District Court ruled in March this year that the parental rights of the birth mother and her partner should be given preference over those of the genetic parents. This was appealed by the genetic parents, resulting in today’s Supreme Court ruling.