Know Your Laws: What to do if IVF centre gives you the wrong baby?

In the Gurugram IVF case, the parents are asking: Where is their biological child? If it goes to court, this case could lead to change in the way India regulates IVF centers.

In Short

• Gurugram couple approach authorities, lodge FIR against clinic
• Experts say there are large-scale irregularities in IVF clinics
• The NCDRC seeks DNA testing reforms in ART cases

The recent case of a Gurugram couple who found that their IVF baby was not actually their biological child at all has grabbed headlines.

The couple has spoken out in the media about how they found that the child born to them after spending lakhs at an IVF center had different features from the rest of their family, and then a DNA test found that she was not related to the father or the mother. They have filed a complaint before the Authority under the Assisted Reproductive Technology Act, and also an FIR under the Act against the IVF center and the hospital where the child was born.

Unfortunately, this is not an exceptional or uncommon case.

In 2023, the National Consumer Disputes Redressal Commission (NCDRC) imposed a Rs 1.5 crore fine on a Delhi-based clinic after it was found that the child did not have the husband’s DNA but some other sperm donor, which was not approved by the couple.

The NCDRC also flagged rampant unethical practices by IVF clinics, noting that they use donor gametes without the consent of the parents, and often don’t have proper storage facilities. The Commission also held the clinic responsible for medical negligence and mental trauma caused to the couple.

One important outcome of the 2023 case was that the NCDRC recommended to the Government of India to amend the ART Act to allow DNA testing. The Commission suggested that a DNA test be done for a baby born through ART procedures, which shows the DNA match to the parents. Till now, there does not seem to have been any action by the Health Ministry or the National Medical Council on this suggestion.

In 2025, a similar case was reported from Secunderabad in Andhra Pradesh, where an FIR was filed against the clinic for using someone else’s sperm sample.

WHAT IS IVF MIX UP?

In IVF, embryos are created using the intended parents’ (or donor’s) egg and sperm, then implanted into the uterus.

A “mix-up” occurs in these cases:

1) The wrong sperm or egg is used

2) Another couple’s embryo is transferred

3) Stored samples are mishandled or mislabelled

Such an error can only come to light after birth, often during a DNA test, a medical complication, or simply when a child looks very different, as was the case for the Gurugram couple.

What is also important is that the ART Act does not restrict the commissioning couple to using only one gamete i.e either sperm or oocyte for IVF treatment of infertility. A commissioning couple can obtain both the counterparts -- sperm as well as oocyte to be condensed into an embryo and then implanted in the wife’s uterus.

In such case, the DNA profile of child would certainly be different from the commissioning couple, but in such a case the couple must be fully informed and sign the consent form.

The law also has provisions barring the disclosure of any identification or information about the donor to the couple, except where there is a medical emergency or by order of a court.

Additionally, the law specifically protects the rights of IVF children. They are legally identified as the biological children of the commissioning couple with all rights and titles under law, and cannot be abandoned or rejected by the couple.

WHAT IF COUPLE HAS USED THEIR OWN SAMPLES BUT FOUND SOMEONE ELSE’S BIOLOGICAL CHILD?

Under Section 33 of the ART Act, 2021, a complaint can be filed for “exploiting the commissioning couple, woman or gamete donor” against the clinic and the doctors who performed the IVF.

However, the punishment under the act lacks teeth – Section 33 provides for punishment of up to 10 lakh rupees fine for the first offence by a medical practitioner, gynaecologist, geneticist or any other person. But if the malpractice is done for the second time, or any subsequent times, there is provision for a jail term of 3-8 years and a fine of minimum Rs 10 lakh.

Advocate Ameyavikrama Thanvi tells India Today that couples can claim both civil and criminal action against the clinic.

“Under the ART Act, a couple can raise a complaint with District/ State authority who will then file a criminal complaint in accordance with sections 33 and 35 of the ART Act. The couple can also file private complaint against doctors by filing FIR under the Bharatiya Nyay Sanhita for cheating and criminal breach of trust. Additionally, the couple may also approach a consumer forum for compensation for medical negligence,” says Thanvi.

Unfortunately, the Law lacks real teeth, and complaints take a long time to get resolved.

In 2023, the UP state Consumer Commission awarded over Rs 40 lakh as compensation and for medical treatment of a child born through IVF, after it was found that the clinic did not disclose foetal abnormalities in the baby during pregnancy. The forum held that the clinic intentionally did not disclose the complications of the child in the womb. This case was of a baby born in 2016.

Speaking to India Today, Advocate Neeraj Kumar Jha, who has handled cases of IVF clinics, said that there are rampant unethical practices by IVF clinics, which rarely get reported.

“These is rampant practices involving violation of medical ethics as couple are ready to pay huge amount to become parents. Presently I am advising about 30 IVF and Surrogacy Clinics in Delhi NCR. These are most common issues. Most often, the clinics enter into compromise with the couple and pay some settlement amount as clinics are financially extremely sound,” said Jha.

While the NCDRC has suggested genetic matching, the law as it stands allows for pre-implantation genetic testing in very limited situations only. Section 25 of the Act allows for genetic screening of the Embryo for “known, pre-existing, heritable or genetic diseases" only, in situations where “one or both genetic parents has a known genetic abnormality and testing is performed on an embryo to determine if it also carries a genetic abnormality.”

Thanvi says that the government would be able to introduce DNA matching by amending Section 25.

The Supreme Court has been averse to DNA tests as routine tests, but in the case of ART births, it is time to integrate the DNA test into some kind of process. Also, while the court’s concerns are legitimate in not making DNA testing a routine test, let’s not forget that today we are living in times when people can conduct these tests at home. In the case of ART, testing at pre-implantation stage may be advisable to avoid this kind of added burden on parents who are already going through mental and emotional stress combined with legal paperwork,” says Thanvi.

In the USA, there have been cases where couples whose embryos or gametes have been exchanged have sued the IVF clinic. In one reported case, the children went back to the respective genetically matched parents.

In the Gurugram case, the parents are asking: Where is their biological child? If it goes to court, this case could lead to change in the way India regulates IVF centers.

- Ends