BC Law Magazine sat down with Professor Shelly Simana to talk about a recent legal case in Israel that raises difficult questions about legal parenthood, following an embryo mix-up at a fertility clinic.
An embryo created from the egg and sperm of one couple was mistakenly implanted in another woman, who carried the pregnancy to term and gave birth to the child. The error came to light during the pregnancy, after a heart condition was detected in the fetus. Following this discovery, the Assuta Medical Center and the Israeli Health Ministry identified the genetic parents. After the child was born, competing claims to legal parenthood emerged—between the woman who had carried and delivered the child and her partner, and the couple genetically related to the child.
The case, known as the Assuta Embryo Mix-Up after the clinic where the error occurred, produced conflicting rulings in the lower courts before reaching the Israeli Supreme Court. On May 11, the Court issued its decision, awarding legal parenthood to the woman who carried the pregnancy and her partner. The majority relied on Israeli statutes such as the Egg Donation Law and the Surrogacy Law—not directly applicable, but treated as instructive. Drawing on these laws, the Court emphasized that Israeli law assigns legal parenthood to the gestational mother, even when she is not genetically related to the child.
In a dissenting opinion, Justice Daphne Barak-Erez criticized the majority for drawing analogies to surrogacy and egg donation, arguing that the absence of consent in the Assuta case was a differentiating and key factor. Barak-Erez cited the work of Simana and two co-authors, which outlines four leading frameworks for assigning legal parenthood in cases of embryo mix-up: gestation, genetics, the best interests of the child, and multiparent recognition. While the article evaluates the strengths and weaknesses of each model and advocates for proactive legislation over case-by-case adjudication, it does not take a normative position on which approach should prevail
The couple genetically related to the child is now seeking an extraordinary form of judicial review, asking the Supreme Court to reopen its decision—an exceptional and rarely granted request. This means the legal story may not yet be over, and the broader question of how the legal system should prepare for similar cases in the future remains unsettled.
How did you become interested in this area of the law and the intersection of law and bioethics more generally?
I’d say it was the combination of practice and theory—encountering these questions both through legal work and through reading and research—that really solidified my commitment to the intersection of law and bioethics.
I first became interested in this area while clerking at the State Attorney’s Office in Israel, in the High Court of Justice Department, which represents the state before the Supreme Court. One of the cases I worked on involved a same-sex couple who had a child through surrogacy in the US. When they returned to Israel, they sought recognition as the child’s legal parents without undergoing genetic testing. That case was my first real exposure to the legal complexities of reproduction, and it got me thinking more broadly about how the law responds—or often struggles to respond—to emerging technologies.
In this field, perhaps more than any other, the law is constantly playing catch-up. New technologies challenge old legal categories, and the consequences are deeply personal: they shape how people build families, make medical decisions, and understand identity, life, and loss.
A turning point for me was reading Hank Greely’s The End of Sex and the Future of Human Reproduction, which offered a sweeping view of where reproductive technologies were heading. It sparked my desire to pursue this work at a deeper level. Around the same time, during my studies at Harvard Law School, I began working closely with Glenn Cohen, whose mentorship became central to my development as a scholar. Under his supervision, I wrote both my LLM thesis on posthumous reproduction and later my SJD dissertation on the governance of genetic material and information.
You co-authored the piece on the Israeli Supreme Court decision for the Petrie-Flom Center’s “Bill of Health” blog, as well as an earlier article in the Journal of Medical Ethics, with Dr. Vardit Ravitsky—now president and CEO of The Hastings Center—and Glenn Cohen, deputy dean and James A. Attwood and Leslie Williams Professor of Law at Harvard. How did your collaboration with them on this issue come about?
Both Glenn and Vardit have been important mentors to me, and I’ve had the privilege of collaborating with each of them on different projects over the years. Glenn has played a central role in my academic life—his thinking has deeply shaped how I approach questions at the intersection of law and bioethics. From my first days at Harvard Law School, he’s been a guide and a role model. I first connected with Vardit during my doctoral studies. I had been reading her work and really admired her perspective, so I reached out. Our early conversations were incredibly helpful, and we’ve stayed in touch ever since.
When I first heard about the embryo mix-up case in Israel, it immediately struck me as a case that raised many of the core questions the three of us have each been thinking about from different directions. I suggested we write something together, and it turned into a very rewarding collaboration. We brought different lenses to the table—legal, ethical, comparative—and I think that helped us capture the complexity of the case in a richer way.
You mentioned that this case brings together many of the questions you’ve been thinking about in your research. What, in your view, does the Assuta Embryo Mix-Up case reveal about how the law—and society—understands the moral and legal weight of genetic connection?
The Assuta Embryo Mix-Up case highlights just how complex—and contested—the moral and legal significance of genetic connection has become in the context of assisted reproduction. On one hand, the determination of the couple genetically related to the child to fight for legal recognition—and the fact that a lower court initially ruled in their favor—shows how powerful the pull of genetics can be. For many, genetic ties feel foundational: they shape identity, legacy, and a deeply held sense of what it means to be a parent. That belief is, in many ways, what drives people to pursue IVF in the first place.
But the Supreme Court’s decision tells a more layered story. It acknowledged the importance of genetics, but ultimately prioritized gestation and caregiving. The Court held that under Israeli law, legal motherhood is determined by gestation—even in the context of clear medical error—and emphasized the best interests of the child, particularly the psychological bond with the woman who carried and is raising her. So, while genetics mattered, it wasn’t decisive.
More broadly, the case exposes a growing gap between genetic and legal parenthood, and forces us to confront a hard question: should the law track genetic ties more closely, or should it sometimes prioritize other values—like intent, caregiving, or stability? My own view is that genetic connection is a real and distinct interest—one that carries ethical and legal weight—but it’s not absolute. It must be weighed alongside other significant considerations. And part of what makes these cases so challenging is that our legal frameworks still don’t offer a clear method for balancing those competing claims.
Building on that—if genetic connection carries real but not absolute weight, what does the Assuta case reveal about the broader limitations of our legal frameworks in handling parenthood and reproductive error more generally?
The Assuta case exposes some of the deepest limitations in current legal frameworks for assigning legal parenthood. Most legal systems still rely on traditional, binary categories—genetic parent or gestational parent—as if those roles always align. But assisted reproduction has made those alignments far less predictable. And when they diverge, the law often lacks the tools to respond in a principled or consistent way.
It also highlights how unprepared courts are to deal with reproductive error. Judges are left trying to fit novel situations into legal categories that weren’t designed for them, often by analogy—to surrogacy, to egg donation, to adoption. But these analogies don’t always hold. The result can be inconsistent, even arbitrary, rulings that don’t reflect the realities or the harms involved.
In our article, we argue for a more proactive legal approach: one that establishes clear default rules across assisted reproduction contexts and mandates disclosure not only of medical risks, but of the legal and emotional risks as well.
To me, one of the most striking gaps is the law’s inability to account for the emotional harm caused by reproductive mix-ups. When an embryo is misplaced or misused, what’s lost isn’t just a generalized opportunity to procreate or become a parent. It’s the specific chance to transmit one’s genetic identity and lineage—a loss that’s deeply personal and yet largely invisible under current tort or contract law. There’s simply no legal category that captures this harm.
That’s a major focus of my current scholarship. I’m working on a project that argues for recognizing genetic continuity as a distinct legal interest—separate from the right to procreate or the right to raise a child. We see this interest surfacing across a wide range of cases: embryo mix-ups, fertility fraud, posthumous reproduction, and more. Until the law acknowledges that interest, it will continue to fall short—not just in how it resolves these disputes, but in how it understands what’s actually at stake for the people living through them.
You centered a point in your Journal of Medical Ethics article that preceded the Supreme Court decision—that there must be legislation proactively in place to deal with these situations that will inevitably arise so that they are not dealt with on an individual post hoc basis. What do you see as the prospects for that happening anytime soon? And do you think such legislative efforts may take into account the reasoning Justice Barak-Erez made in her dissent and you and your co-authors in your article regarding the unique dynamics of these cases?
To be honest, I’m not very optimistic about legislation emerging in Israel anytime soon—despite how urgent and necessary it is. Reproductive issues in general are underregulated, and that reflects a broader cultural and political reluctance to treat reproduction as an area for legal intervention. There’s a sense that it’s too personal, too intimate, and that the state should stay out of it. We see a similar dynamic in the US.
Certain areas, like surrogacy or gamete donation, are more likely to be regulated, often because they involve third parties assisting in reproduction. But embryo mix-ups tend to be framed as private disputes between intended parents, even when the consequences are systemic. That framing makes it harder to recognize the need for broader, proactive legislation.
And this isn’t a new pattern. Take posthumous reproduction, for example—an issue that’s widely debated in Israel. Despite repeated proposals, public attention, and committee work, no comprehensive legislation has passed. That history doesn’t give much reason for optimism.
That said, if legislation does move forward, I think it will have to confront exactly the kinds of tensions we identified in our article: between gestation and genetics, intent and error, adult interests and child welfare. Justice Barak-Erez’s dissent captured some of these deeper questions, especially around reproductive intent and the harm that comes from severing genetic ties. Even for those who may disagree with her conclusion, the concerns she raises are real. Any serious legal framework will need to take them seriously.
With the extraordinary appeal that the genetic parent couple is trying to make to the Supreme Court decision, what do you see as the odds of that going forward and the prospects for this particular case?
It’s hard to say with certainty, but I think the odds of the Supreme Court granting this extraordinary appeal are quite low. Requests to reopen a final ruling through an additional hearing are rare, and the legal standard is high. It’s not enough that the case raises difficult or even important questions; the petitioner must show a compelling reason to override the principle of finality and the rule that precedent is set by the original panel.
That’s a steep bar to clear. And while the issues here are clearly complex, the Court may believe its original ruling addressed them sufficiently. So procedurally, I’d say the chances of a rehearing are slim.
That said, the fact that the couple genetically related to the child is pursuing this extraordinary path says a lot. It reflects how unresolved these questions remain, both emotionally and legally. Even if the Court declines to revisit the case, the ruling hasn’t resolved the deeper tensions it raises—about the weight of genetic ties, the significance of the physical and emotional demands of pregnancy, and how we define parenthood in the context of reproductive error.
So while this case may be nearing its legal conclusion, its impact is far from over. It will continue to shape how courts, lawmakers, and the public grapple with the limits of current legal frameworks—and the kinds of cases we’re likely to see again.
Justice Barak-Erez’s dissent drew in part on comparative reasoning, including a 1993 decision from the California Supreme Court. From your perspective, how common is it for Israeli courts to look to foreign case law, especially compared to courts in the United States?
In Israel, citing foreign case law, especially from the US and major European jurisdictions, is fairly common, particularly in cases that raise novel or complex legal questions. But it often depends on the individual judge. Justices like Barak-Erez tend to take a more comparative approach and actively look to how other legal systems have handled similar issues. Others are more cautious and prefer to ground their reasoning primarily in domestic law.
Personally, I think comparative reasoning is especially valuable in areas like assisted reproduction, where legal frameworks are still evolving. These are questions where precedent is limited, and we can learn a great deal from how other jurisdictions have approached similar challenges.
That said, the scope of comparative analysis in Israeli judicial decisions tends to be focused. US case law is cited most frequently, with occasional references to UK, Canadian, or German decisions. But unlike in academic writing, it’s not usually a broad or systematic comparison. Rather, foreign decisions are used selectively to illustrate a legal principle, to highlight a shared challenge, or to offer persuasive reasoning where Israeli law is unsettled.
You mentioned how Israeli courts sometimes draw on comparative case law, and that Justice Barak-Erez cited a US decision in her dissent. Stepping back from the Israeli context, do you think a case like this would have been decided differently in another country?
It’s hard to say with certainty whether this case would have been decided differently elsewhere, but I do think cultural and religious context plays a significant role, and that was especially evident here. The Israeli Supreme Court explicitly engaged with Jewish law in its reasoning. Justice Chilik Weitzman, for example, in a concurring opinion, conducted a detailed halakhic analysis to explore whether Jewish sources could help resolve the question of legal parenthood. He acknowledged that halakha doesn’t offer a single clear answer, but noted that most contemporary rabbinic authorities consider the birth mother to be the legal mother.
In other jurisdictions, we might see a different outcome. In the US, for instance, the few reported embryo mix-up cases have tended to prioritize genetic ties. A notable example is Perry-Rogers v. Fasano, where the court ultimately ruled in favor of the couple genetically related to the child, despite the fact that another woman had carried and delivered the baby. The court held that gestation alone did not establish parental rights, though it acknowledged that a gestational mother may, in some cases, possess enforceable interests and is not a mere “genetic stranger.” A more recent example is the case of Anni and Ashot Manukyan, a California couple whose embryo was mistakenly implanted into a woman in New York. Unaware of the error, the New York woman gave birth to twin boys, neither genetically related to her or each other. One of the boys was the genetic child of the Manukyans. After DNA testing confirmed the mix-up, the Manukyans pursued legal action and were eventually granted custody of their son.
It’s also important to recognize that we’re still at the early stages of seeing these cases unfold. As genetic testing becomes more widespread, more people may discover past embryo mix-ups, though some may prefer not to know. So while these cases are rare now, they may become more common. And how courts respond will likely continue to vary widely, depending on each country’s legal framework, cultural norms, and underlying beliefs about what defines parenthood.