Despite IVF mixup, court rules ‘Baby Sophie’ will not be placed with biological parents

In a reversal of a lower court’s decision, an Israeli court’s three-judge panel has ruled that a woman who gave birth to a baby girl with no biological connection to her or her partner should retain custody and the child should not be placed with her biological parents. The legal battle has gone on for at least two years, and the girl’s biological parents plan to appeal to Israel’s Supreme Court.

IVF mixups, while rare, do occur — and everyone suffers as a result. No matter which parents the Supreme Court rules in favor of, this little girl is in a no-win situation.

“Baby Sophie” was created as part of her biological parents’ attempt to have a child through the process of in vitro fertilization (IVF). But on the day that Sophie was to be transferred to her mother’s uterus as an embryo, another woman was called back from the waiting room at the fertility clinic and Sophie was accidentally implanted into that woman instead of her biological mother. The mistake was discovered during the third trimester, when testing revealed that Sophie had a heart issue that would require surgery. She was also born with developmental delays.

When Sophie’s biological parents learned of the mixup, they fought for custody of their baby, but she remained with the woman who gave birth to her and that woman’s partner. In November, an Israeli court ordered that Sophie should be returned to her biological parents, but the birth mother appealed to a higher court. She argued that she is the one who knows how to care for Sophie, who has undergone three heart surgeries.

This month, the Israeli Central District Court ruled that the birth mother and her partner, not the biological parents, will retain custody of Sophie.

A three-judge panel ruled in favor of the birth mother, saying she should be given custody over Sophie’s biological mother because she conceived, carried, and gave birth to Sophie. The woman also refused an abortion even after doctors advised her to abort following Sophie’s diagnosis. She then underwent a risky intrauterine procedure to save Sophie’s life.

READ: GUEST OPINION: Children conceived by IVF are precious. But IVF is still unethical.

“We are thrilled and emotional over the ruling that corrected the injustice done to us in the lower court,” the birth parents said after the ruling. “We pray this decision will give our daughter and us the peace we need to continue her development.”

Although the non-biological mother was awarded custody, the judges also ruled that Sophie’s biological parents will have visitation rights. “We are shocked and devastated by this decision,” they said. “This ruling sends the painful message that even the most serious mistakes remain uncorrected. Our daughter belongs with her true family.”

Research shows that children who live in a home with their married, biological parents are healthier both physically and mentally. However, removing a child from the only parents she has known both inside and outside of the womb can cause significant trauma.

Studies have found that separating babies from their birth mothers — whether they are biologically related or not — can cause trauma for the child and can permanently alter her adult brain function later in life. While adoption seeks to heal the trauma that results when a birth mother feels unable to raise her child and lovingly selects a family to raise her baby, surrogacy deliberately creates separation trauma as a child is created to intentionally be separated from his or her birth mother.

In Sophie’s case, a ‘surrogate’ pregnancy was unintentionally created for Sophie, her biological parents, and the woman who gave birth to her.