Supreme Court rules birth parents of child born in IVF mix-up are legal parents
Ruling ends 3-year legal struggle over child, and upholds a lower court ruling, after unprecedented mistake in which couple received wrong embryo during fertility treatment
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The Supreme Court ruled on appeal on Sunday that the legal parents of Sophia, a young girl born following an embryo implantation mix-up in 2022, are her birth mother and the woman’s partner, and not her genetic parents.
In the majority four-to-one decision, the court upheld the Central District Court’s decision earlier this year that Sophia should remain in the care of her birth parents, bringing the tragic three-year-long saga to an end.
The Supreme Court did, however, approve the lower court’s determination that a special framework must be established to enable Sophia’s genetic parents to keep in close contact with her.
Sophia has been raised by her birth mother and her partner from the time that she was born. The embryo implantation mistake was made at the Rishon Lezion Assuta Medical Center in 2022, where the birth mother was undergoing fertility treatments.
The error was discovered during the pregnancy, when the 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.
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.”
But the Central District Court reversed that decision in March this year, ruling that the parental rights of the birth mother and her partner should be given preference over that of the genetic parents, a decision that was appealed by the genetic parents, resulting in Sunday’s Supreme Court ruling.
Judges Yael Wilner, Ofer Grosskopf, and Yehiel Kasher all ruled that the birth mother and her partner were Sophia’s legal parents. Judge Alex Stein also ruled to reject the appeal and that the birth mother was Sophia’s legal mother, but contended that the genetic father should be registered as the child’s father — without guardianship rights.
Judge Daphne Barak Erez maintained that Sophia’s genetic parents should be the legal parents.
Writing for the majority, Wilner said that there was a lacuna in the law for dealing with the legal questions arising from the situation.
She therefore used a legal tool of deduction from a clause in the 1996 Surrogacy Law, which established that in a situation in which the surrogate mother decides to withdraw from a surrogacy agreement with the genetic parents (with the agreement of a court), the birthing mother is the legal mother and guardian of the baby.
Wilner wrote that that law can be applied to the current case since the contested parentage claims, which the surrogacy law discusses, mirror the contested parentage claims in the embryo mix-up case.
Wilner also wrote 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.
And she wrote that the good of the child justified 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,” as well as Sophia’s “complex medical situation,” from which she has suffered since birth.
Attorney Galit Kerner, who represented the birth mother and her partner, said she was “extraordinarily moved” that Sophia’s birth parents would now “have quiet to raise her in peace — for the mother who carried her, and her partner who is raising her.”
Kerner added, “We hope and pray that the other side will put down its sword and begin to speak and act with peace for [the sake] of this little girl, who deserves this.”
Lawyers for the genetic parents said they had “read with sadness” the Supreme Court decision, saying it would have “significant and difficult” broad implications for the girl’s future and for the field of fertility in Israel in general.
“Sophia’s best interests and future are what concern her genetic parents, and this is what has guided us from the beginning of the path in the fight to return her to the bosom of her biological family,” they said.
A Health Ministry probe into the incident, published in March 2023, pointed to significant breaches in protocol, due to heavy workload resulting in the embryo mix-up.
After reviewing medical records and interviewing medical staff and patients, an external committee concluded that the mix-up most likely occurred when the woman who received the embryo and the genetic mother were both in the clinic’s waiting area at the same time. The women likely went in for the embryo transfer in the wrong order, resulting in the error.
The Times of Israel Community.