The child involved in an IVF mix-up at a Brisbane clinic was conceived in early 2023 and would now be a toddler, sources say.
Monash IVF, which operates nationally, discovered the mistake in February, after the birth parents asked to transfer their remaining frozen embryos to another provider.
The fertility company says human error led to a different patient's embryo being implanted.
It's believed to be the first time something like this has happened in Australia.
Bioethicist Hilary Bowman-Smart, of the University of South Australia, said both sets of parents would be experiencing "significant psychological distress", and not only because of questions around parentage.
"Experiencing infertility and going through IVF can be very tough emotionally and physically in and of itself, as well as expensive, even when things go well," Dr Bowman-Smart said.
"One set of parents has lost an embryo, and one set of parents received an embryo that wasn't theirs. Both sets of parents have experienced an incredible loss."
Dr Bowman-Smart said that for the woman who had given birth, this was not a stranger's baby.
"She has been pregnant with this child, she gave birth to this child and raised this child … as her own," she said.
"There is no easy path forward here, but it is not only genetic parenthood that we should think about when we talk about the 'biological' or 'real' parents — gestational parenthood matters too."
What laws regulate IVF?
Last September, Labor passed laws to regulate IVF companies, giving Queensland Health the power to issue improvement notices, seize property and records, and shut down non-compliant providers.
Before that, the industry operated under a "self-regulatory regime", according to the Queensland Health Ombudsman.
Shadow Health Minister Shannon Fentiman confirmed the laws weren't retrospective, adding the transfer of another patient's embryo was a "shocking mistake".
"It really does demonstrate how important it was to put in place a licensing regime and tough regulation for these companies," she said.
"The laws that the Labor government passed meant that Queensland Health could now actually go in and inspect these companies, and actually hold them to account for compliance."
Similar laws were put in place in Victoria in 2008, requiring companies to tell the health regulator about mistakes — like the incorrect transfer of an embryo.
A Queensland Health Ombudsman investigation into assisted reproductive technology (ART), released last year before the new laws passed, found "gaps and risks" in oversight and independence.
"The gravity of adverse events that can occur in the provision of ART treatment indicate a compelling case for the need for proposed legislation to regulate ART providers in Queensland and strengthen the safeguards for consumers, donors and donor-conceived people," the report said.
Under the new laws, Queensland Health has the power to inspect IVF providers, put conditions on licences and issue improvement notices, suspend or cancel licences for non-compliance, and inspect and seize property and records.
The legislation banned sex selection, the use of gametes where they were closely related, and IVF treatment of a child.
It also created a register for people conceived by donors to get information about their genetic history.
In a statement, Queensland Health said it had met with Monash IVF after it was notified of the incident.
"We will work with them to reinforce safeguards in its Queensland clinics and ensure any risks are identified and mitigated," a statement said.
It said it welcomed Monash IVF's decision to launch an independent investigation and would await the outcomes before determining further action.
Could legal action be taken?
The Fertility Society of Australia and New Zealand (FSANZ), responsible for setting national standards for assisted reproductive technology, said mistakes like these "require the highest standards of transparency".
"The trust patients place in our profession is sacred, and we must continually earn it through clear governance, shared responsibility, and action," the organisation said in a statement.
Dr Christopher Rudge from the Sydney Law School said a "number of potential legal actions" could be taken, and the incident would set a legal precedent in Australian law.
"We've got an interesting mix of ... federal law as well as state law here," he said.
He said some questions would relate to whether the parents consented to this particular treatment.
"Whether that error [made by clinic] constitutes medical negligence is going to be at the forefront of all those minds of those involved.
"We could see potential action by the child as well in the future."
Has this happened before?
Former chair of the Victorian IVF regulator Michael Gorton said such a mix-up "shouldn't happen".
"Clearly, something has happened described as human error, which shouldn't have been able to happen," Mr Gorton said.
"My understanding is there's only been two other cases like this in America.
"The responsibility was always on the clinic. There are very clear systems in the IVF space, which have been in place for years. The systems are supposed to prevent human error."
Mr Gorton was commissioned by Queensland's Office of the Health Ombudsman to assist her investigation of licensed IVF operators in the state, with a report published last year.
The Victorian commercial lawyer described the bungle as the "first time we've had something like this in Australia".
Mr Gorton said while Queensland Health — the assisted reproduction technology (ART) regulator — had no power to investigate the embryo mix-up because it occurred before new laws were passed in September, it could use its "own powers to just go into Monash IVF to make sure they are now fully compliant".
He said while Queensland had moved "towards a bit more regulation" in the ART space, the state still did not have enough powers.
FSANZ said it would not comment further while an investigation is underway.
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