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Supreme Court orders genetic testing to go ahead for baby born in IVF mix-up

The Supreme Court on Wednesday refused to hear an appeal seeking to stop genetic testing ordered by a family court to determine the biological parentage of a baby born in October 2022.

The appeal against the testing was sought by the woman who carried and birthed the baby, and her partner. The couple have mounted a legal battle to keep and raise the baby girl despite having no genetic link to her.

The lack of genetic affinity resulted from a mix-up at the IVF clinic at the Assuta Medical Center in Rishon Lezion, which was discovered when the then in utero fetus was determined to have medical problems and consequently underwent a variety of tests. The results showed that neither the woman carrying the child nor her partner could be the biological parents.

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 went in for embryo transfer in the wrong order, resulting in the error.

Initially, Assuta identified 22 couples treated in its IVF clinic as potential biological parents of the baby. Later, it was concluded that six of those couples had the highest chance of being genetically matched with the baby.

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When in December 2022 the Health Ministry said it would not pursue a search for the genetic parents, the six couples turned to the courts for redress. As the legal process plays itself out, the baby has been in the custody of the woman who gave birth to her and her partner, while a legal representative has been appointed for her.

Assuta Medical Center in Rishon Lezion. (Screen capture: Google Maps)

In July 2023, a family court ruled, based on evidence from a Health Ministry report, that only one couple with the highest likelihood of genetic affinity could move forward with efforts to determine whether they are the biological parents.

With the Supreme Court refusing to hear the appeal from the couple currently raising the baby, genetic testing of the baby must proceed to learn whether she matches the couple given permission by the family court to proceed.

In parallel, the couple fighting to keep and raise the baby has filed a lawsuit against Assuta for NIS 10 million ($2.9 million) over the mishap.

The Health Ministry accused Assuta Rishon Lezion of covering up the mix-up, which was found by an external committee to have resulted from significant breaches of protocol on the part of the entire staff rather than a single person.

“The committee believes that the embryologists’ workload is the reason for not following proper procedures and ‘skipping’ over steps within the protocols,” the committee’s report said.

The report attributed the sharp increase in the number of IVF procedures at the hospital fact between 2017 and late 2022 to the government’s having shifted fertility treatment to private hospitals such as Assuta. The resultant “factory assembly line” was financially beneficial for the Health Ministry, private hospitals, and doctors, but put patients at risk due to the increasing workload.

View of Assuta Hospital, Ramat haHayal, Tel Aviv. May 20, 2023. (Avshalom Sassoni/ FLASH90)

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.

Additional restrictions on the hospital came following a hearing focusing on several recent highly problematic incidents involving the department, including a baby born via in-vitro fertilization performed there who was found to not be genetically linked to the father. That couple is suing Assuta for NIS 34 million ($9.2 million).