Krystena Murray realized something had gone awry in her in-vitro fertilization process immediately after giving birth: She is white, as was her chosen sperm donor, who had dirty blond hair and blue eyes. But her baby was dark-skinned.
“He was beautiful and perfect, but it was also very clear that something was wrong,” she said. “I hoped that it was just a sperm mix up.”
The IVF process had been grueling. Murray, now 38, had endured multiple daily injections, frequent blood draws, bouts of nausea and exhaustion, a first embryo transfer that didn’t take, and, finally, pregnancy and labor.
Then a DNA test revealed that the Georgia fertility clinic Murray had used had implanted a different couple’s embryo in her uterus. After raising the baby for five months, Murray, heartbroken, handed him over to his biological parents.
“We all met in court, and the decision was made,” she said. “I walked in a mom with a child and a baby who loved me and was mine and was attached to me, and I walked out of the building with an empty stroller. And they left with my son.”
She sued the clinic last month.
Although cases like Murray’s are thought to be rare, an NBC News analysis of federal and state legal databases found more than 300 lawsuits filed from 2019 to 2024 alleging that embryos, eggs or sperm had been lost, destroyed or swapped. The suits were filed against fertility clinics or companies involved in the IVF process across 19 states, and the majority — at least 260 — involved allegations of product or equipment failures.
Some legal experts say the cases are, in part, a product of the industry’s rapid growth. The number of babies born via assisted reproductive technology — which includes IVF — more than quadrupled from 1996 to 2022. The number of fertility procedures increased more than six-fold. Market researchers estimated the U.S. fertility industry was worth $5.7 billion last year.
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IVF isn’t governed by the same regulations that hold other medical practitioners accountable for mistakes or safety violations, three legal experts said. For example, although more than half of U.S. states require hospitals to report serious, avoidable medical errors to regulators, those requirements don’t apply to IVF clinics. And embryology labs aren’t subject to federal inspections the way, say, blood banks are — instead, most are inspected by accreditation organizations.
What’s more, there is no established legal claim pertaining to lost or swapped embryos like there is for medical malpractice cases involving errors by health care providers. So, IVF patients often have a hard time seeking redress after something goes wrong.
Few of the lawsuits in NBC News’ analysis have gone to trial — and of those that have been resolved, most were settled or dismissed.
Adam Wolf, an attorney representing Murray, said he expects to see more cases like hers because, in his view, the U.S. lacks sufficient state and federal regulations governing fertility clinics and labs.
“Until IVF clinics are subject to real regulations, reporting requirements and mandatory certification programs for lab staff, these types of errors will continue to occur,” he said at a news conference last month.
Wolf is part of a growing chorus of former IVF patients, lawyers, bioethicists and even some anti-abortion advocates calling for increased regulation of IVF. As demand rises, some say, the industry needs more oversight in order to keep pace.
“Maybe if enough of us speak out, there will be more regulation, there will be more protocol put into place,” said Marissa Calhoun, 36, who sued her Los Angeles fertility clinic in the fall, alleging that the embryos she and her partner intended to use to start a family had been discarded by mistake. “That’s my only hope.”
How common are IVF errors? It’s a mystery
Calhoun was diagnosed with severe endometriosis in her teens — a condition that can make it difficult to get pregnant. By age 35, she had completed three painful egg retrievals.
She and her partner, Stephen Castaneda, were elated in late 2023 when they found out that 16 of Calhoun’s eggs had been successfully fertilized.
But days later, Calhoun’s doctor called: “He told me that all of my embryos had been discarded. He described it as an error in their lab,” she said. “I could barely speak. The weight of my medical condition, the weight of the years I spent collecting those eggs … I can’t describe the rush of thoughts and the rush of emotions that overtook me. I was just inconsolable.”
Calhoun’s lawsuit alleges that a laboratory employee had failed to label her embryos before placing them in an incubator, then threw the unlabeled embryos away.
The clinic, Reproductive Partners Medical Group, said it could not comment on an active lawsuit but denied the allegations in a court filing. A conference between the judge and the opposing parties is scheduled for later this month to determine next steps.
NBC News’ analysis identified 82 lawsuits related to allegations of human error, like Calhoun’s, from 2019 to 2024, and 13 over swapped embryos, eggs or sperm.
The cases involving equipment and product failures, meanwhile, included 176 related to a 2018 storage tank failure at a fertility clinic in San Francisco called Pacific Fertility Center, which led to the destruction of about 2,500 eggs and 1,500 embryos.
The tank’s maker, Chart Industries Inc., denied an allegation made in a class action suit that the tank was defective. The clinic’s parent company, Prelude Fertility, denied allegations that it had been negligent.
“Prelude and Pacific Fertility Center contend that the 2018 storage tank failure was caused by a defective tank,” said Alexandra Preece Barlow, an attorney who represented Prelude in the class action suit.
Many of the cases against the clinic have gone to arbitration. However, in one that went to trial, a jury determined that Chart and Pacific Fertility Center had been negligent and awarded five former patients a total of $15 million. Chart appealed and reached a confidential settlement in that case and others.
Chart, Prelude Fertility and Pacific Fertility Center did not respond to requests for comment. However, the clinic told NBC Bay Area shortly after the incident that it had brought in independent experts to investigate.
“We are truly sorry this happened and for the anxiety that this will surely cause,” it said at the time.
Another 50-plus lawsuits in NBC News’ analysis were related to claims that a liquid used to help fertilized eggs develop destroyed hundreds of embryos. The company that manufactured the solution, CooperSurgical, recalled several lots last year.
CooperSurgical did not respond to requests for comment, but in a statement to NBC Connecticut last year, the company said it had initiated the recall proactively while investigating any potential issues. The company denied liability in response to one ongoing lawsuit in Ohio, and it has not yet responded to others filed in Connecticut, according to lawyers representing some of those plaintiffs.
It’s impossible to know how often IVF-related accidents or mistakes really happen because clinics aren’t required to report them to federal or state agencies. No national database tracks the issues.
Many IVF patients sign agreements to resolve disputes through a neutral third party rather than in court, said Tiseme Zegeye, who represents dozens of patients suing CooperSurgical.
“We only hear about a small percentage of the disasters that happen in the fertility industry because so many patients sign arbitration agreements with their clinic,” she said.
On the regulatory side, states generally don’t require a special license for IVF clinics to operate. (By contrast, the United Kingdom has a regulatory authority that licenses fertility clinics and approves the procedures they offer.)
The Food and Drug Administration does, however, inspect facilities that store eggs and embryos and requires donor eggs and sperm to be tested for disease. IVF clinics are also required to report pregnancy success rates annually to the Centers for Disease Control and Prevention, which publishes the data.
Many fertility clinics and labs follow voluntary guidelines from the American Society for Reproductive Medicine, a professional association of fertility doctors that outlines best practices. The guidelines include having a policy to disclose errors to patients.
Contrary to the characterization offered by some legal experts, Sean Tipton, the society’s chief advocacy and policy officer, said that “fertility care is regulated essentially the same way as all medicine in the U.S.” and that lawsuits are “an important component” of that.
The society declined to answer specific questions about fertility industry lawsuits.
IVF errors fall into a legal gray area
Murray surrendered custody of the baby she still considers her son in May, knowing she would likely lose a custody battle. Giving him up was perhaps the hardest thing she’s ever done, she said.
“You’ve built your whole life around your son. You rearrange everything. Everything is about him. You spend every day for him, and then he’s not there,” Murray said.
The clinic, Coastal Fertility Specialists, told NBC News that it “deeply regrets the distress caused by an unprecedented error that resulted in an embryo transfer mix-up.” It has not yet responded to the complaint.
Dov Fox, director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law, said IVF lawsuits are challenging because courts tend to treat the errors as unfortunate accidents rather than violations of a provider’s duty to care for patients.
“Courts have been reluctant to recognize reproductive interests as real or serious, and, in turn, we haven’t developed the kind of practice standards or expectations enforceable under the law in the way that we have in other areas of health care,” he said.
By comparison, for medical errors like a sponge left inside a patient after a surgical procedure, patients often sue for medical malpractice. Fox said suits involving embryo loss have a harder time making that claim, since they rarely result in physical injuries. Instead, he added, they are typically filed as negligence or property damage cases, which often focus on financial harm and may underplay the emotional costs to couples.
Courts also don’t look favorably upon claims that a clinic violated its contract with a patient, he said, since clinics don’t guarantee results.
The IVF industry has historically opposed additional regulation, saying that mistakes are no more common than in any other field of medicine.
“I think the industry as a whole is moving in the direction of safer practices — not that it was unsafe before, but just improving and getting better,” said Brent Barrett, chief laboratory director at Boston IVF, a network of more than 15 fertility centers across New England.
Barrett said IVF clinics generally have strict protocols about where equipment is placed in labs and require more than one person to examine labels and dishes containing embryos. Many clinics have also adopted electronic tracking systems that assign barcodes to eggs, embryos and sperm.
But those measures aren’t federally mandated.
“Clinics could, if they want, use pencil and paper to label reproductive specimens,” Fox said.
A fraught debate over embryos
Reproductive rights advocates also have a reason to be wary of increased IVF regulations: They fear amplifying debates about whether embryos are considered babies under the law.
That question was central to a wrongful death lawsuit filed last year against a fertility clinic in Alabama, after a person allegedly dropped several embryos on the floor. The Alabama Supreme Court ruled that embryos created through IVF were legally children.
The verdict prompted multiple clinics to pause IVF services until state lawmakers passed a bill protecting providers that discard embryos. Discarding embryos because they have genetic abnormalities or patients no longer wish to use them is a routine part of the IVF process, though anti-abortion groups oppose the practice.
“IVF is really mired in personhood and abortion debates in the United States in a way that just really complicates the discourse compared to places like the U.K.,” said Danielle Pacia, a research associate at The Hastings Center, a bioethics research institute in Garrison, New York.
Zegeye, the lawyer, acknowledged that in pushing for IVF regulations, there’s a risk of extremes that prevent clinics from functioning — as happened in Alabama.
“I do think that there’s a fine line and that we have to find a way to allow access to health care and still protect patients,” she said.
The Alabama case, and its timing during an election year, thrust such conversations into the national spotlight.
Republicans and Democrats each introduced IVF bills in the Senate last year: The Democratic bill proposed codifying access to IVF at the federal level, while the Republican bill would have denied Medicaid funds to states that prohibited IVF. Neither passed.
Kamala Harris and Donald Trump both expressed support for IVF access during their campaigns, with Trump promising that either the government or insurance companies would cover the cost. Last month, President Trump issued an executive order seeking strategies to lower IVF costs, including by further reducing regulation.
“It is the policy of my Administration to ensure reliable access to IVF treatment, including by easing unnecessary statutory or regulatory burdens to make IVF treatment drastically more affordable,” the order says.
In the wake of the announcement, several anti-abortion groups called for more oversight of the industry.
“America’s IVF industry is completely unregulated,” Kristan Hawkins, president of Students for Life of America, an anti-abortion advocacy group, wrote on X. “Now that President Trump says he wants to fund more of it, shouldn’t a logical step for the Trump Administration be to regulate it, at a minimum?”
