This article provides general legal information, not legal advice. Parentage law varies significantly by state, and mix-up cases are highly fact-specific.
The Question Nobody Is Prepared For
When a fertility clinic transfers the wrong embryo, two families are left asking a question almost no court has definitively answered: who are the child’s legal parents — the woman who carried and delivered the baby, or the couple whose DNA the child carries?
It is not an abstract question. It decided the outcome of the two most prominent embryo mix-up cases in recent memory — the Fertility Center of Orlando case and Murray v. Coastal Fertility — and it shapes every settlement negotiation in this area of law.
The Starting Point: The Birth Mother Presumption
In most states, the woman who gives birth to a child is presumed to be the child’s legal mother, and her spouse is presumed to be the other legal parent. These presumptions were built for a world before IVF — they assume the birth mother is also the genetic mother. Surrogacy statutes carve out exceptions, but only where the parties signed a valid surrogacy agreement before conception. An embryo mix-up fits neither box: there is no surrogacy contract, and the genetic parents never consented to anyone else carrying their child.
What Courts Have Actually Done
- Fertility Center of Orlando (Florida, 2026): the birth parents remained the child’s permanent custodial parents by agreement, with the genetic parents — represented by our firm — remaining part of the child’s life. No court was forced to pick a winner; the families resolved it based on the best interests of the child.
- Murray v. Coastal Fertility (Georgia, 2025): a mother who gave birth after a wrong-embryo transfer surrendered the baby to the genetic parents after being advised she would likely lose a custody fight — the mirror image of the Orlando outcome, showing how unsettled this area is.
- Older cases (such as New York’s Perry-Rogers v. Fasano) have sometimes favored genetic parents, but courts have repeatedly emphasized that there is no one-size-fits-all rule.
The honest summary: the law is unsettled, outcomes vary by state and facts, and courts lean heavily on the best interests of the child — especially the harm of removing a child from the only home they have known.
What This Means for Genetic Parents
If DNA testing reveals that your embryo was carried and delivered by someone else, you may have rights — but asserting them involves painful trade-offs. Key considerations include how quickly the error was discovered (days versus years matter enormously), your state’s parentage statutes, and whether a negotiated arrangement (custody, visitation, ongoing contact) can serve the child better than litigation. You also have independent claims against the clinic regardless of how custody resolves.
What This Means for Birth Parents
Parents who deliver and bond with a child later found to be genetically unrelated generally have strong — but not unassailable — claims to continued custody, particularly as time passes. They, too, have independent malpractice claims against the clinic for the profound harm of the error itself.
Why Children’s Rights Representation Matters
In these cases the child has interests that are distinct from either set of parents. Fertility Law Group is unusual among fertility malpractice firms in that our founding partners include a dedicated children’s rights attorney, Inga Sanders, who focuses on protecting the child’s interests, privacy, and future in exactly these situations. That perspective shapes how we approach every mix-up case — including our role representing the genetic parents in the Fertility Center of Orlando case.
Common Questions
Does the genetic mother automatically get the baby? No. There is no automatic rule. Genetics is one factor; gestation, bonding, timing of discovery, and state law all matter.
Can both families end up in the child’s life? Yes — the Orlando case resolved exactly that way, by agreement. Negotiated outcomes are often better for the child than a courtroom fight.
Can we sue the clinic no matter how custody turns out? Generally, yes. Custody and malpractice are separate questions. Both families may have substantial claims against the clinic for negligence, emotional distress, and related harms. See our overview of wrong embryo transfer claims.
What should I do first if I just learned of a mix-up? Preserve every record, get genetic confirmation through a reputable lab, do not sign anything from the clinic, and speak with counsel experienced in both fertility malpractice and parentage law before taking any position on custody.
Talk to Us
If your family is facing an embryo mix-up — on either side of it — contact us for a free, strictly confidential consultation. We have handled the highest-profile mix-up cases in the country and we understand that the child at the center of it matters most.