In August 2024, Monash IVF agreed to a $56 million settlement, $40 million in compensation plus $16 million in legal costs, to resolve a class action brought by more than 700 patients who alleged the company misled them about the accuracy of an embryo screening test.
The case, approved by the Supreme Court of Victoria and formally resolved in early 2025, is one of the most significant medical negligence class actions in Australian fertility history. It raises questions about informed consent in fertility care that extend well beyond Monash IVF.
What Was The Monash IVF Class Action About?
Between May 2019 and October 2020, Monash IVF offered patients a non-invasive form of preimplantation genetic testing called NiPGT-A (non-invasive preimplantation genetic testing for aneuploidy). The test collected material from the fluid surrounding the embryo, rather than removing a cell directly from the embryo itself as the standard invasive test (PGT-A) does.
According to the plaintiffs’ pleadings and reporting on the proceedings, patients were told that the NiPGT-A results were indistinguishable from the invasive test in approximately 95% of cases. The class action alleged that this representation was false, with Monash IVF later acknowledging a concordance range of around 75 to 85% in public statements. Plaintiffs and media reports cited estimates suggesting that a substantial proportion of embryos classified as abnormal by NiPGT-A may have been viable, with some reports referencing a figure in the range of 35%, though this reflects the asserted statistics from the proceedings rather than an independently verified scientific consensus. For patients who relied on those results, viable embryos were destroyed or not transferred.
Monash IVF settled the proceedings on 20 August 2024 for a total of $56 million, comprising $40 million in compensation plus $16 million in legal costs, without admitting liability. The Supreme Court of Victoria approved the settlement terms, with the formal court hearing taking place in December 2024.
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The Legal Principle: Why Informed Consent Matters
The legal foundation of the Monash IVF proceedings was informed consent, the right of patients to receive accurate, complete, and non-misleading information about their medical treatment before agreeing to it. In Australian law, the duty to obtain informed consent was clarified by the High Court in Rogers v Whitaker (1992) 175 CLR 479. That case established that a medical practitioner must disclose material risks and information that a reasonable patient in the plaintiff’s position would want to know. Subsequent cases have reinforced that this duty applies not just to surgical risks but to the accuracy of diagnostic tests and the limitations of medical procedures.
In the Monash IVF context, the allegation was precise: patients were told the NiPGT-A test matched the invasive standard in 95% of cases. That representation was false. Had patients been told the actual concordance rate, many would have made different decisions, choosing the invasive test, declining genetic testing entirely, or proceeding to transfer an embryo that NiPGT-A had incorrectly classified as abnormal.
What Losses Can Be Claimed In IVF Negligence Cases?
The Monash IVF settlement illustrates the range of losses that can arise from negligent fertility treatment or inadequate disclosure:
(1) The cost of IVF cycles that would not have been undertaken had accurate information been provided
(2) The cost of additional treatment made necessary by the original failure
(3) Pain and suffering: the physical burden of repeated egg retrievals, transfers, and failed procedures
(4) Psychological harm: the grief, anxiety, and trauma associated with preventable failed fertility treatment
(5) Loss of the chance to pursue a viable embryo that was wrongly classified as abnormal
(6) In the most severe cases, permanent loss of the opportunity to have a biological child
Courts in Australia have consistently recognised that losses in the fertility context are not limited to economic harm. Psychological injury and the profound life consequences of preventable fertility treatment failure are recognised heads of damage.
What This Means for Fertility Patients: The Questions to Ask
The legal principles tested in Monash IVF apply to any fertility provider that fails to give accurate and complete information about the risks and limitations of treatment. If you received IVF treatment in Australia, the following questions are relevant:
(1) Were you offered NiPGT-A testing through Monash IVF between May 2019 and October 2020? You should seek specific advice on whether you fall within the settled class and what options remain open to you.
(2) Were you given specific accuracy information about any embryo screening test, and was that information correct?
(3) Did you have embryos classified as abnormal and not transferred? Were the limitations of the testing method explained to you beforehand?
(4) Did you make decisions about your treatment based on representations a clinic made about test accuracy or success rates?
(5) Did you suffer physical, psychological, or financial loss as a result?
Time Limits And Next Steps
Time limits apply to medical negligence claims. In NSW, the standard limitation period is three years from the date you became aware, or ought reasonably to have become aware, of the negligence and the harm it caused. The date of awareness is a nuanced question that turns on the specific circumstances of each patient. Specialist advice is important for anyone considering whether a claim remains open. To learn more about medical negligence claims, visit our medical negligence page.
Seeking Specialist Legal Advice
Whether you have been charged, are under investigation, or believe you may have a civil claim arising from the matters discussed in this article, O’Brien Criminal & Civil Solicitors offers a free initial consultation. Our team regularly appears in Australian media as expert commentators on criminal, civil, and defamation law, and we bring that expertise to every client matter.
Phone: 02 9261 4281
