Updated at 2:23 p.m. ET on July 11, 2019.
Anni and Ashot Manukyan had spent several months unsuccessfully trying to get pregnant through IVF when they received a bewildering message this April. According to a lawsuit filed yesterday, their clinic in L.A., CHA Fertility Center, needed the couple to come in immediately. When they arrived, they found out their son had just been born—to complete strangers, 3,000 miles away in New York City.
The Manukyans and the couple who had the baby in New York, as well as a third, unnamed couple, had all gone to CHA Fertility Center for IVF, and the clinic mixed up their embryos—according to separate lawsuits filed by the Manukyans and the New York couple, who are identified only by their initials, A.P. and Y.Z. Anni and A.P. had embryo transfers at CHA on the same day in August 2018. Anni’s was unsuccessful, but A.P. became pregnant with twins.
The New York couple started to worry when an ultrasound revealed A.P. was carrying twin boys, according to their lawsuit, which was filed on July 1. Their IVF cycle was supposed to have produced only one male embryo. But the clinic’s staff dismissed their concerns until the boys were born. A.P. and Y.Z. are Asian, but the babies did not appear to be. DNA tests revealed the twins were not related to each other or to the New York couple—rather, one matched the Manukyans and the other matched the third couple. That’s when the Manukyans finally learned of their son. (CHA Fertility Center did not respond to requests for comment.)
“All of a sudden my brain went to, I didn’t get to bond with my baby. I wasn’t able to carry him. I wasn’t able to hold him. I wasn’t able to feel him inside of me,” said Anni, breaking into tears, in a video released by her lawyers. The Manukyans spent the next several weeks contacting lawyers and frantically trying to get their son back.
Meanwhile, the parents in New York had spent months anticipating the birth of their babies and now weeks caring for them. They too had gone through the expense and the pain of IVF because they desperately wanted children, and they did not want to give up custody of the boys, according to the Manukyans’ lawsuit. In May, however, a judge ruled in favor of the genetic parents. “There was pretty much just an explosion of sobbing,” says Eric Wrubel, the lawyer who represented the Manukyans in the custody case. Anni got to meet her son for the first time in a hotel lobby in New York.
Wrubel also represented the third couple, who remain anonymous, and they too later got custody of their son. The New York couple say they were “required to relinquish custody” of both babies in their lawsuit. Their lawyer did not return a request for comment.
Until the advent of IVF, the mother of a child was unquestionably the woman who gave birth to that child. The ability to create embryos in a petri dish and then transfer them into the womb—any woman’s womb—made gestational surrogacy arrangements possible and introduced new nuances.* But occasional mistakes by IVF clinics have also created scenarios, like this one, of essentially involuntary surrogacy, which do not merely add nuance to traditional definitions of parenthood, but utterly confound them.
The embryo mix-up with the most direct parallels to the CHA Fertility case comes from the 1990s—also in New York and also involving an embryo mistakenly transferred into a mother of a different race. In 1998, Donna Fasano, a white woman, gave birth to twins, one genetically related to her and the other to a black couple, the Perry-Rogerses, who were patients of the same fertility clinic. Both families sued the clinic and settled for undisclosed amounts. But they also went to court against each other. In 1999, judges awarded the genetic parents, the Perry-Rogerses, permanent custody. In 2000, they denied visiting rights to the Fasanos.
But the judges of the New York State Supreme Court refused to make their ruling the final word on the rights of a gestational mother. “We will not simply adopt the Rogerses’ suggestion that no gestational mother may ever claim visitation with the infant she carried, in view of her status as a ‘genetic stranger’ to the infant,” the judges wrote. Because Fasano had learned of the mix-up soon after the transfer, the judges likened it to a switched-at-birth scenario that should have been corrected right away. In other cases, the ruling said, “additional considerations may be relevant for an initial threshold analysis of who is, or may be, a ‘parent.’”
Wrubel says the Manukyans’ case rested in part on Perry-Rogers v. Fasano, but also on a landmark 2016 New York State Court of Appeals decision best known for expanding the definition of parenthood to same-sex couples, by focusing on intent to have a child. (Wrubel also argued the 2016 case.) Since Anni and Ashot intended to have a child with their DNA, Wrubel says, the court decided they were the parents. But in a different state with different laws and court rulings, the Manukyans’ custody case might very well have turned out differently.
“There’s no definitive answer here as to who should have custody and visitation rights,” says Naomi Cahn, a family law professor at George Washington University. A handful of other fertility-clinic mix-ups don’t necessarily offer clear answers either, as the circumstances are all slightly different. In the 1990s, amid a wide-ranging scandal at UC Irvine’s fertility clinic, at least three families sued for custody of genetic children that were born to other families. It’s unclear exactly how the cases were settled, but the mistakes were discovered only years later, when the children had already bonded with the families raising them.
In 2004, a California woman settled for $1 million with the fertility clinic that transferred the wrong embryo into her; it was created by another couple using the husband’s sperm and an unrelated egg donor. A judge ordered the gestational mother to split custody with the genetic father, but not technically with his wife, who was not genetically related. And in 2009, a woman in Ohio voluntarily gave the baby she carried to the genetic parents. She had learned of the mistake at the same time she found out she was pregnant.
More of these serious mix-ups likely go unnoticed, especially if there is no obvious racial mismatch. And they become public only when patients choose to come forward. “We have no idea how often [this kind of mistake] happens, and there’s no requirement that prevents it from happening,” says Dov Fox, a law professor at the University of San Diego and the author of Birth Rights and Wrongs. The American Society for Reproductive Medicine has guidelines for labeling samples and promptly disclosing medical errors, but no government agency enforces them.
As the families involved in this case put together the pieces, they have also had to contend with the unknown fates of their other embryos. Were they discarded? Are they still frozen? Or could they have been transferred into yet someone else? “I’m just praying to God I don’t have another son or daughter out there,” Anni says.
* This article previously mischaracterized parts of the IVF process.