When the Wrong Embryo Is Implanted: Legal Steps and ART Act Protections in India
- Sunil Khattri
- Sep 18
- 4 min read
Updated: Oct 6
In 2024, a couple in Hyderabad made headlines after discovering that the child born through surrogacy was not biologically related to them. What was initially a joyful journey to parenthood turned into a nightmare of emotional distress, legal confusion, and media scrutiny.
This case reflects a growing concern: what happens when medical errors occur during IVF or surrogacy, particularly involving wrongful embryo implantation?
In recent years, India has seen a growing reliance on Assisted Reproductive Technology (ART) such as in vitro fertilization (IVF), egg and sperm donation, and surrogacy. These advancements offer hope to many aspiring parents, but they also bring complex medical, ethical, and legal challenges, particularly when something goes wrong.
One of the most serious yet rarely discussed complications is the wrongful implantation of embryos, an error that can have life-altering consequences for all parties involved.
This blog outlines the key legal protections under the ART (Regulation) Act, 2021, explains what steps intended parents can take if such an error occurs, and explores proposed solutions like DNA verification, clinic audits, and informed consent reforms to strengthen patient safety and accountability in the fertility sector.
What the ART (Regulation) Act, 2021 Says
India passed the ART Regulation Act to standardize and monitor fertility services. Key provisions include:
Licensing & Oversight: All ART clinics and banks must be registered and monitored by National and State ART & Surrogacy Boards.
Handling of Gametes & Embryos: Clinics are legally required to follow strict protocols for storage, labeling, and transfer. Any mix-up may be treated as medical negligence or criminal misconduct.
Legal Parentage: The Act presumes legal parentage for commissioning couples, safeguarding the child’s legal identity even in the event of technical or biological errors.
Penalties: Section 33 outlines penalties of ₹5–25 lakh and/or imprisonment up to 10 years for serious violations.
What Can Intended Parents Do If a Wrong Embryo Is Implanted?
Discovering that the wrong embryo has been implanted is understandably distressing. In such a scenario, the emotional, medical, and legal implications can feel overwhelming. Here’s a step-by-step overview of what parents in India can do :
1. Stay Calm and Request Full Documentation :
The first step is to request all medical records from the clinic, including:
Embryo handling and transfer logs
Consent forms signed before the procedure
Identity tracking information of embryos (e.g., labeling, barcodes, lab entries)
This documentation forms the basis for understanding what may have gone wrong.
2. Get a Second Opinion & Genetic Testing :
To confirm a mix-up:
Consult a medical genetics expert
Opt for Post natal DNA testing to confirm the genetic relationship
Genetic testing may be crucial for proving any malpractice or for making decisions around custody, parentage, and legal redress.
3. File a Complaint Under ART Law :
Under the ART (Regulation) Act, 2021, patients have the right to file a complaint with:
The District ART Board
State ART Authorities
The Consumer Court (for deficiency in service under the Consumer Protection Act)
You may also consider approaching the State Medical Council for medical negligence complaints.
4. Seek Legal Advice from ART Specialists :
Due to the complexity of such cases, involving both emotional and technical legal issues, it is advised to consult a lawyer experienced in:
ART law
Surrogacy & parentage disputes
Medical negligence
Compensation claims
A lawyer can help you understand your rights, explore custody options (in surrogacy or donor cases), and pursue civil or criminal remedies if needed.
5. Know Your Rights as Legal Parents
Even if the embryo implanted is not genetically yours, Indian law under Section 31 of the ART Act recognizes the commissioning couple as the legal parents—provided the procedure was done with valid consent and documentation. This protects you from losing parental rights due to medical error.
6. Report Unlicensed Clinics or Practitioners
Many such errors occur in unregulated or illegal fertility centers. If your clinic was not registered under the ART Act or Surrogacy Act, you can escalate the matter to the health department or licensing authorities.
The authorities have the power to:
Suspend or revoke clinic licenses
Impose fines (₹5 lakh to ₹25 lakh)
Initiate criminal prosecution in severe cases
7. Emotional Support & Counselling
Such incidents can cause emotional trauma, especially for couples who have waited years to build a family. Psychological counselling—either individually or as a couple—is strongly recommended, particularly when decisions around continuing or terminating the pregnancy arise.
Proposed Solutions: What Experts Are Saying
DNA Fingerprinting: Experts have recommended mandatory DNA verification before embryo implantation and after birth to prevent fraud and verify parentage.
Regular Audits: Periodic government inspection of IVF clinics to ensure compliance with ART rules is gaining momentum.
Stronger Informed Consent: Standardizing how consent forms are explained and signed can reduce confusion and ensure patients are aware of all possibilities, risks, and procedures.
Final thoughts
The consequences of wrongful embryo implantation cases can be devastating. The ART (Regulation) Act provides a solid legal foundation to protect patients, but its success depends on strict enforcement, increased patient awareness, and professional responsibility from fertility clinics.
If you or someone you know is navigating the ART process, make sure your clinic is properly registered, demand clear documentation, and don’t hesitate to seek legal support if something doesn’t feel right.
The Author :
Dr. Sunil Khattri
+91 9811618704
Dr Sunil Khattri MBBS, MS(General Surgery), LLB, is a Medical doctor and is a practicing Advocate in the Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi.
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