The High Court of Justice on Sunday upheld a District Court ruling that a baby born due to an error in an in vitro fertilization (IVF) procedure at the Assuta Medical Center in Rishon Lezion will remain under the custody of her adoptive parents, who raised her, rather than her biological parents.
The error occurred when the embryos were swapped, and a girl ended up being born to a couple who were not her biological parents.The decision was handed by Justices Yael Willner, Daphne Barak-Erez, Ofer Grosskopf, Alex Stein, and Yechiel Meir Kasher.
Willner, who wrote the main decision, was joined by Grosskopf and Kasher. Stein agreed as well to dismissing the appeal, but ruled that Sophia’s genetic father should be listed as such, though without any guardianship rights. Barak-Erez, in the minority opinion, held that the ruling should have been the opposite.Willner noted that this is an unusually tragic case, and that the dispute between the two sides touches on one of the most vulnerable aspects of a person – their identity as a parent, and their relationship to their children.
Sophia was born on October 26, 2022, through IVF in Assuta. While the biological mother was in her 28th week of pregnancy, medical staff found a heart malfunction in the fetus. This led to testing, including genetic testing, which showed that she was not their genetic child.
Testing completed in 2023 revealed baby Sophia's biological parents
Further testing, completed on September 27, 2023, revealed who the biological parents were, and they requested from the court to be named the child’s parents and to receive guardianship over her.A family court decided at the time that the biological parents should have the child. The adoptive parents appealed this decision to a district court, which decided that they were the legal guardians, and that she should stay with them.The district court also decided that, for the good of the child, the biological parents should be involved to some capacity. The biological parents then appealed this decision to the High Court.Willner explained in the decision that based on existing adoption laws, the person who births the child is legally their parent, and that those laws should apply to this case, as there is no clear judgment on the matter. She wrote that clarifying legislation should be advanced on this, as it is so clearly needed.Grosskopf called it a “tragic decision,” one that led the ruling to be chiefly guided by what would be best for Sophia.Willner added that the parental relationship between the adoptive parents and Sophia began already before she was even born, and that at no point did the adoptive mother relinquish that bond.Another point Willner raised is that Sophia was in the care of her parents since she was born; that relationship already exists, and this framework is the best for the child.Barak-Erez, in the minority opinion, noted that the reasons the biological parents turned to IVF in the first place must be taken into consideration – the desire to bring a genetic child into the world. Not to mention, the arduous journey that IVF entails for the mother.She also rejected the application of adoption laws to this case, since with adoption, there is a clear agreement between both sides – and that is not the case here. Additionally, the biological parents didn’t have a chance to establish a relationship with Sophia, so it is impossible to discern if their care would be better or worse than the other couple.