On a cold New York day after the usual nine months of nesting and anticipation, Donna Fasano gave birth to two darling boys.
She and her husband, Richard, were both in their late 30s and had enlisted an IVF clinic to help them conceive, so when the twin cries filled that hospital room in December 1998, there was not only joy, but relief.
They named the babies Vincent and Joseph and took them home to Staten Island, where the little ones shared bath time and a baby gym, in the way brothers do.
“Both these boys are beautiful – two precious, normal little boys,” the couple’s lawyer, Ivan Tantleff, said in the wake of the catastrophe that unfolded, though it would have been hard for the parents to deny knowing something was amiss.
On May 10, 1999, when the babies were five months old, Donna and Richard separated their twins, said a tearful goodbye to Joseph, and handed him over to two strangers.
“We’re giving him up because we love him,” Donna explained at the time.
It was heartbreaking but they didn’t have a choice because, despite the fact that Donna had given birth to him, Joseph had no biological relationship to Donna, Richard or his ‘twin brother’, Vincent. In fact, the Fasanos were white and Joseph, or Akeil as he was renamed, was African American.
The error that led to this nightmare situation was revealed in an ugly court battle. Akeil’s biological parents, Deborah and Robert Rogers, had attended a Manhattan IVF clinic on the same day as the Fasanos, but unlike the Fasanos, their procedure had not resulted in a pregnancy.
What Deborah and Robert didn’t then know was that their embryo had been inadvertently implanted in Donna’s womb. In May 1998, eight months before the babies were born, the clinic contacted both couples and warned them of the suspected error.
The Rogers were distressed at the thought that their embryo had been misplaced and their much-wanted baby would be born to another couple. But when Deborah and Robert tried to contact the Fasanos, there was no response. Desperate, the Rogers filed a lawsuit that forced the Fasanos to undergo DNA testing.
“This wasn’t my doing,” Donna said in a statement in 1999. “People with infertility problems should be able to go to their doctors and trust them to do the right thing. To them it’s a job but to me it’s my life.”
After tests proved Akeil was the genetic son of the Rogers, the Fasanos relinquished custody, but only on the condition they could have a relationship with him.
The Rogers initially allowed the Fasano family to visit, but the tense meetings led to the Rogers seeking a court order to stop the contact, and the dispute turned nasty.
It was a tragic situation that had no legal precedent, the New York Court of Appeals said, as it made a ruling preventing the Fasanos from seeing the baby they had birthed and nurtured.
“It is only with the recent advent of in-vitro fertilisation technology that it has become possible to divide between two women the functions that traditionally defined a mother,” the court said.
“With this technology, a troublesome legal dilemma has arisen: When one woman’s fertilised eggs are implanted in another, which woman is the child’s natural mother?”
It’s a question society is still grappling with. Since Donna and Richard gave up baby Joseph, there have been instances of eggs being fertilised with unclean pipettes and doctors who have made mistakes but kept quiet, hoping the faulty transfers wouldn’t take.
The errors are shocking and rare, but they do happen. “Humans make mistakes despite the most careful guidelines,” leading Australian IVF expert Professor Gab Kovacs says.
This year, three US couples were embroiled in a harrowing legal battle after a Korean-American woman living in New York gave birth to two babies who were not related to her, or each other.
The CHA Fertility Center transferred embryos from two different couples into a third woman, according to a writ filed on behalf of one of the couples.
Anni and Ashot Manukyan of California got their first inkling something was wrong when the CHA clinic asked them to come in for a cheek swab. When Anni asked what it was for, she was told it was a routine quality control procedure that the company did once a year.
Lawyers for the couple say CHA wanted to obtain their DNA under false pretences to determine if a child born to another couple was Anni and Ashot’s biological child.
“The truth was appalling,” a writ filed on behalf of the Manukyans said. The next day, the couple was called back to the clinic where they were told a baby had been born in New York, and he was their genetic match.
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“I heard my heart beat outside of my body,” Anni told a press conference, adding that her first thoughts were of the birth mother. “What about her? What is she going through?”
The Manukyans fought for custody of the baby and are now suing CHA. They won the custody case, but despite being united with their son, their ordeal has not ended.
“They cry every day,” court documents say. “They no longer trust anyone and their guard is always up. This is something that will live with them for the rest of their lives.”
The other two couples involved in the CHA controversy have not wanted to be identified; however, in their lawsuit against the clinic the birth parents say they suffered “permanent emotional injuries from which they will not recover”.
Their own female embryos, which they believed had been implanted, have been lost forever.
Anni and Ashot’s lawyer, Adam Wolf, says his firm has worked on hundreds of cases of fertility-centre misconduct, including the loss and mishandling of embryos, but this latest is by far the most egregious.
“This is an industry that is largely unregulated. We need accountability for big fertility so that this does not happen again,” the California-based lawyer said.
Local experts say there’s little chance of such blunders occuring here. Clinics in Australia must be accredited through a federal governing body that requires them to adhere to guidelines and undergo auditing.
Every step of each fertility procedure is double-checked by a second set of eyes and most of the larger providers label their genetic material with barcodes.
Professor Kovacs says there have been Australian cases of errors being identified at the lab stage but a policy of open disclosure, which applies to all hospital errors in Australia, seeks to prevent shocks like those that have taken place in America.
“The couple is immediately informed,” he says. “If the embryo hasn’t been [implanted], you wouldn’t do a transfer. If a transfer has been done and the embryo’s the wrong embryo, the couple could stop taking hormones so the pregnancy doesn’t take.”
“Or if there’s a pregnancy, they could opt for termination of the pregnancy. That’s been the process that I’ve heard of happening.”
In 1983, a Melbourne woman underwent an abortion after her fertility doctor revealed she had accidentally impregnated the woman with sperm from a donor of Egyptian heritage, instead of a donor who looked like her husband.
The woman later successfully sued the doctor who had threatened to deny the woman fertility treatment if she didn’t terminate the pregnancy.
Sarah Jefford, a lawyer who specialises in fertility issues, says a mix-up of the severity seen in the US is unlikely here because Australian clinicians are more conservative.
However, with an estimated eight million instances of eggs, sperm or embryos being handled in large labs each year in Australia, mistakes are unavoidable, Professor Kovacs says.
“Whilst it’s most unlikely, unfortunately there always will be mix-ups where people make a mistake. What normally happens … is the clinic would accept responsibility and provide the couple with free treatment until they get pregnant – that would be the normal process.”
In comparison, America is virtually “uncontrolled”, Professor Kovacs says. There, even under the best circumstances, the emotional strain of a mistake is immense.
In February 2009, Ohio couple Carolyn and Sean Savage were awaiting the results of their last-chance embryo transfer. They already had two sons and a daughter, and desperately wanted more, but conceiving had been difficult and the fertility treatment was taking a toll.
They had been through 20 ovarian stimulation cycles, three rounds of IVF, two frozen embryo transfers and four miscarriages. This would be their last round of IVF and they were anxious to learn if it had worked.
When they finally received the call, the doctor said Carolyn was pregnant but there was a problem. The clinic had transferred the wrong embryo and the baby Carolyn was carrying was another couple’s.
“I just thought, no, that can’t happen,” Carolyn told the Christian Broadcast Network in 2010. Despite their shock and distress, there was never any thought the couple would fight for custody of the baby boy.
“One of my most immediate thoughts was of that other mother,” Carolyn said. “What would it be like to get that news that your embryo is inside a stranger? There’s no way I’m going to take that away from someone else.”
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The doctor encouraged them to terminate the pregnancy, but as Catholics, they would never consider an abortion. “It didn’t matter that this child was in the wrong womb,” Carolyn wrote in her memoir, Inconceivable. “That wasn’t his or her fault.”
The pregnancy was difficult, and they relied on counselling to get them through it. Carolyn has described catching a glimpse of herself in the mirror and experiencing the brief joyful thought of “pregnant!” before quickly remembering it was not her baby.
The idea of giving away the child she was carrying weighed heavily. She wondered, “How in the world am I going to survive that?”
One state away, in Michigan, teacher Shannon Morell had just arrived at her Year 8 classroom when she noticed there were two voice messages waiting on her phone.
She was puzzled when she played them and discovered both voice messages were from her IVF clinic. She hadn’t visited the clinic in years and the nurse sounded extremely tense.
When she heard that a stranger was pregnant with her embryo she fell back in her chair.
“It’s almost too much to fathom,” Shannon told NBC in 2009. “It’s overwhelming.”
Like Carolyn, Shannon’s immediate thoughts were of the other woman.
“This had to be the most terrible thing that had ever happened to her and her husband,” she wrote in her book, Misconception.
She and her husband, Paul, were overjoyed when they learned the other couple would carry their baby to term and then give him to them, but they endured periods of uncertainty, fear and apprehension.
Shannon describes feeling “left out of our baby’s life”. She had suffered two miscarriages and was eager for news of their baby, who they nicknamed ‘our little peanut’.
“I always felt a small sense of trepidation when I saw the lawyer’s return address in my inbox. Would this be the email that brought bad news?” she wrote.
The two couples met when Carolyn was 14 weeks pregnant. The first thing that Shannon said was thank you.
“She was so grateful for what we had done,” Carolyn told NBC.
The Savages had only one request of the Morells.
“We wanted a moment to say hello and good-bye.”
In September, Carolyn gave birth to a boy.
“He was extremely feisty,” she said. She and her husband celebrated the birth just like they celebrated the births of their other children.
Then, after 10 precious minutes together, Sean took the little bundle downstairs and handed the newborn to Shannon and Paul. The Morells named him Logan Savage Morell.
“There’s no way we could possibly repay them for what they’ve done for us because you can’t put a price on human life,” said Shannon.
Although they never wavered in their decision, the Savages have admitted that the aftermath of the birth was more difficult than they’d anticipated.
“There’s a child who lives 150 miles north of my home who I pray for every night before I go to bed,” Carolyn said. “I think about him all the time. I hope someday we get to know him.”
IVF mix-ups are rare but what makes the case of the Morells and the Savages, rarer still is how the families resolved the error with so much respect and compassion for each other.
The same year as the Savage-Morell story was playing out, the IVF Wales clinic in Cardiff paid a couple £25,000, after one of their embryos was implanted in another woman who chose to terminate the pregnancy.
The London Telegraph reported at the time a trainee embryologist had mixed up their embryo after taking it from the wrong shelf of the incubator.
A similar mistake occurred in Japan – in 2009 a woman sued the Kagawa Prefectural Government after the wrong embryo was implanted in her in a public hospital.
Then there was the case of single mother Susan Buchweitz of San Francisco, who faced losing her 10-month-old son after an IVF whistleblower revealed there had been a mistake when he was conceived.
Susan was approaching her late forties when she underwent fertility treatment in mid-2000. An interior decorator who had always intended to raise a family, she had attempted IVF earlier with her then fiancé, but the relationship had fallen apart under the strain of repeated, failed attempts to conceive.
“But the desire for a family and a child was stronger than ever,” Susan told The San Francisco Chronicle in 2004.
She underwent an embryo transfer, fell pregnant and gave birth to a cherished son, who she believed had been conceived using a donor egg fertilised with donor sperm.
Then, in 2001, Susan received a phone call from the Medical Board of California informing her they’d received an anonymous tip there’d been a mistake made the day of her fertility treatment.
A married couple had attended the same clinic for their own transfer the day of Susan’s procedure. They underwent a transfer using a donor egg fertilised with the husband’s sperm, resulting in the birth of a little girl.
The whistleblower said the same set of embryos, fertilised with the same sperm, were mistakenly used to conceive Susan’s little boy. Even though they had been born to different mothers, the children were full biological siblings.
When the married couple found out about the error, the husband sought full custody of Susan’s son and was granted visitation rights after a court ruled he was the boy’s legal father.
The wife had no legal claim but Susan was forced to take her son to the couple’s house a couple of days a week until 2005, when the son was three years old, and a court ruled Susan and the husband had to share custody of the child.
As the custody battle raged on, Susan described the situation as an “ongoing nightmare”. Because there was no obvious visible difference between Susan and her son, the error had gone undetected until the whistleblower came forward.
It’s a problem articulated by Anni on the steps of a courthouse after she learned about the mix-up involving her son. “The only reason we found out about this one is because the couple carrying him was Asian and we are Caucasian,” Anni said.
Her observation raises the question of whether mix-ups where there is no visible difference between the baby and birth parents are going undetected. Professor Kovacs says “it’s possible”.
“I consulted in China, in Shanghai, for 12 years and when we started they didn’t double-check. When we first said to them, ‘You’ve got to double-check everything – it’s not enough to have one person check it,’ one of the comments that one of the people in the clinic made was, ‘Why? If you make a mistake, no one will know. They all have black hair and brown eyes’. But the world has changed.”
Professor Kovacs, who started working in the industry in 1978, says the industry has matured dramatically.
“A generation ago, you worked on the principle that, if they don’t know, it won’t hurt them. That’s no longer acceptable.”
China now uses fingerprinting to identify women having transfers and ensure they’re getting the right embryo, he says. Australia, and in particularly Victoria, has some of the tightest regulations in the world.
The CHA case demonstrates there are no winners in these mix-ups. Anni and Ashot Manukyan may have ‘won’ the custody battle, but they still suffered a great loss and sense of violation.
“I didn’t get to bond with my child,” a tearful Anni said in a video statement. “I wasn’t able to carry him. I wasn’t able to hold him. I wasn’t able to feel him inside of me. I wasn’t there when he was born.”
The couple who had their twins separated and ripped from their arms are surely suffering too.
However, had the mix-up occurred in the UK, or even Australia, the result may have been different. US courts have uniformly ruled a child born after an IVF mix-up belongs with their biological parents, but the UK takes the opposite approach.
There, a woman who has a child through IVF is deemed the legal mother, even if the child isn’t genetically hers.
Sarah Jefford says if such a mix-up occurred here, Australian courts would be unlikely to take the baby from their birth parents and hand it to the genetic parents.
“We probably wouldn’t do that as an automatic thing in Australia,” she says. “It would be about what’s actually best for this child. Genetics would barely come into it.”
The law considers the person who births the baby is the legal parent unless the court declares otherwise, she adds. But whether that would apply in the case of someone accidentally giving birth to a baby who wasn’t related to them, she can’t be sure.
“Because the chances of it happening in Australia are so slim, it’s hard to imagine,” she says, “How do you even start with that sort of case? Where do we begin?”
Hopefully we will never find out.
Genevieve Gannon is a feature writer at The Australian Women’s Weekly. She researched IVF mix-up cases for her novel, The Mothers, published by Allen and Unwin, out now.