A couple had their third child in San Isidro and when he was regarding to leave the clinic, the baby’s father noticed that something was not right: the blood group did not correspond to his and his wife’s. If the record was correct, with that group and factor she mightn’t be genetically his son.
They then did a new blood test and the first result was confirmed. To eradicate any doubt, a doctor recommended a DNA study, which once more confirmed the incompatibility.
The couple had undergone a treatment in vitro fertilization, but since they had not resorted to egg or sperm donation, the embryo had to have genetic material only from them. The suspicion, from the first moment, was that in the fertility clinic, by mistake, the woman had been transferred the embryo of another couple.
Criminal justice opened an investigation to determine if there was any crime. It was processed in a correctional prosecutor’s office in San Isidro, following the complaint of the couple who had had the baby, for the alleged crimes of identity suppression, fraud and injuries. With the intervention of the Argentine Federal Police, the sanatorium where the child was born was raided -to obtain the medical history- and the fertility institute.
The investigators considered that the problem was in the institute. THE NATION It does not reveal the names of the protagonists in this case or the center to avoid giving information that would allow the identification of the child or the families involved. It can specify that the people to whom the embryo might actually correspond are aware of the situation and are now under study to determine who it belonged to. This was reported by sources who know what happens inside the institution, who specified that the egg that gave rise to the embryo would have been donated and that it remains to determine who is the biological father among a small group of clients of the fertility center.
As for the embryo that should have been placed in the couple who had the baby, they were informed that it turned out to be unsuitable for implantation, sources in the case reported. This would rule out the possibility that, with a double confusion, a child was born from their embryo.
Vadim Mischanchuk, a criminal lawyer, is the fertility center’s lawyer. he said to THE NATION: “We made ourselves available to the Police and Justice. Taking care of both the family that had the baby and the rest of the people involved, the measures we considered necessary were taken. Regarding the fault of the institute, he affirmed that they might not specify where it was: “The protocol was reviewed one and a hundred times and it was not found where this situation might have occurred.”
The criminal case was closed. The Justice came to the conclusion that there would have been an error in the medical treatment; without intent, the crimes of identity suppression or fraud cannot be configured, and no injuries have been corroborated for now. The prosecutor’s office, then, dismissed the case, but gave intervention to the family law and the advisor for minors and incapacitated, judicial sources reported.
This is the first case of this type that is known in Argentina. In terms of filiation, it can become a highly complex matter to determine who should be recognized as the parents of the child (who was registered as the son of the woman who gestated him and her partner). It is not a donated embryo and there was a procreational desire in both families. Marisa Herrera, a lawyer specializing in family law, explained that, if a dispute arises, “the big question is socio-affectiveness” to determine what is best for the child. In parallel with parentage, this can lead to a claim for damages, she added.
Herrera told THE NATION that there was a similar case in Italy. “On October 8, 2014, the Court of Rome issued the first ruling worldwide in an alleged exchange of embryos. At the time of proceeding with the implantation, due to a medical error, the embryos were intercrossed: the embryo of the other couple’s genetic material was implanted in the uterus of each woman and one had a twin pregnancy. The other couple sued so that, when the children were born, they would be given to them because they were the genetic parents, but the Public Ministry rejected the request, considering that it was in the interest of the children not to be separated from the biological mother by application of the adage ‘mother it is always true’, and because the Italian legal system establishes that the determination of maternity derives from childbirth”, said Herrera.
“In the same sense –explained the lawyer- the Court of Rome rejected the claim. She argued that in current law parentage has been gradually moving away from genetic belonging. In addition, she pointed out that, in the interest of the children, it was important to maintain the bond generated with the defendant couple, because the babies had forged an affective relationship with those parents.
In that same ruling, Herrera recounted, the Roman court nonetheless recognized the plaintiffs for the damage suffered and, therefore, the right to claim compensation for the “inexcusable error” of which they had been victims.