JOHANNESBURG - A mother in KwaZulu-Natal has found herself in the middle of a legal battle that will see her motherhood being tested after DNA testing revealed that the child she has watched grow up for nine years is not biologically hers.
A whistleblower revealed a massive 2016 blunder wherein an alleged embryo mix-up led to an Indian woman giving birth to an African baby boy.
This has left two families facing life-changing questions about what happens to the child who has spent nine years believing one woman was his mother?
An attorney who specialises in fertility and surrogacy law, Robynne Friedman, said an extensive interview process with a curator appointed to represent the child’s best interests would be required.
According to Friedman, the curator must conduct extensive interviews with the relevant parties, particularly through psychologists and social workers, who will then submit opinions to the court on what is in the child’s best interests.
“A judge is going to be hard-pressed to award custody to the biological parents, just based on the premise of biology alone, because we know that there's much more to parenting than a genetic link.
“So unless the social workers and psychologists involved in the investigative process can find real concrete evidence of neglect or the inability of the birth mother to adequately financially and emotionally parent this child, the judge would again be hard-pressed to award custody based on biology alone.”
Friedman stressed that a balanced approach could be found, provided it is found to be in the best interests of the child.
“The biological parents could be introduced to the child at an age and at a stage where the psychologists deem it to be appropriate, and after they have given guidance to the biological parents as well as the birth mother as to how to manage the situation adequately.”
This, she said, is to allow the child to foster some kind of friendship or relationship with the biological parents.
“This is particularly important because you must remember in this case, the child is of African origin, and he’s now being birthed by a mother who is of Indian origin. So this could be particularly confusing for a child and this child does have a right to understand his cultural heritage and biological origins,” she added.
READ: IVF error leaves two families facing a life-changing identity crisis
She said that at the same time, once the child turns 18, he is free to seek out his biological parents and establish his own connection with them.
“Factors such as the child's maturity and ability to understand that his identity was mixed up at birth can be particularly confusing for a nine-year-old child. But every child is different.
“If he has significant maturity, then the social workers and psychologists might feel that he might be able to handle parts of this identifying information being disclosed to him at this stage of his life,” Friedman added.
But Friedman emphasises that biology alone is not a significant factor to automatically get custody of the child.
Parenting, she said, is about being able to provide the child with emotional support and financial support.
“One can imagine uprooting the child from this environment and merely handing the child over nine years later to his biologically linked parents who have had absolutely no experience or no involvement with this child since the child’s formative years. This, on the face of it, without doing substantial investigations into his living circumstances, could fly in the face of his best interests.”
Friedman adds that IVF mix-ups are extremely rare, thanks to multiple safeguards like barcode or RFID tracking and independent staff checks.
However, she notes that the true number of cases is unknown, as some may be settled privately.
Even so, she does not believe that patients should be concerned about embryo mix-up cases occurring because of the double checks that take place in every IVF laboratory.