What Happens When the Wrong Woman Gives Birth to Your Child?

In a decision many are calling one of the most disturbing and misguided rulings in Israeli legal history, the Supreme Court has determined that baby Sophia - at the center of the tragic embryo-swap case at Assuta Hospital - will remain with the surrogate mother who gave birth to her, rather than be returned to her biological parents.

The central legal question? What defines true motherhood: genetics or the womb? Justice Yael Willner, writing the majority opinion, ruled in favor of the birthing mother - effectively stating that the physical act of giving birth outweighs genetic ties. In doing so, the court set a dramatic and controversial precedent: Israeli law now prioritizes womb over blood.

This is despite the fact that Sophia’s biological parents had no say in the embryo transfer, which was the result of a catastrophic medical error at the IVF clinic.

Only one justice dissented: Daphne Barak-Erez, who argued that biological parenthood should prevail in such a case of lab error. She maintained that genetic connection and parental intent should override the accident of whose body carried the fetus.

Yet the majority, led by Willner and joined by Justices Groskopf, Kasher, and partially by Stein, ruled that Sophia will remain with the parents who raised her since birth - the surrogate mother and her partner. Biological parents will be allowed "some form of connection", but no legal custody or parental status.

A Systemic Bias

Critics say this ruling exposes a broader pattern in Israeli family law: systemic judicial bias in favor of mothers - even when they are not the biological parent.

In child removal cases, fathers are routinely ignored, and when the mother is deemed unfit, courts default to foster care or state institutions rather than the father. “Best interest of the child,” many argue, has become a convenient catch-all for judges to impose personal values rather than apply consistent legal principles.

This ruling is no exception. By applying a surrogacy law analogy - originally designed for cases with explicit agreements - the court treated the unintentional pregnancy as if it had been a legal surrogacy agreement withdrawn by the surrogate. This, critics say, is legal madness.

The Backstory: Assuta's Fatal Mistake

The embryo mix-up came to light in 2022 when a genetic test revealed that the fetus carried by a woman at Assuta Medical Center was not related to her or her partner. The baby, later named Sophia, was born and raised by the surrogate mother who unknowingly carried someone else’s child.

In November 2024, the Family Court ruled that Sophia should be transferred to her biological parents. That ruling was quickly appealed by the surrogate parents and overturned by the District Court. Now, the Supreme Court has sealed the decision: Sophia will not be returned.

Justice Willner admitted there is a legal vacuum—a “lacuna”—in Israeli law on such matters. But instead of deferring to biological ties, she extrapolated from the Surrogacy Law that if a birthing mother backs out of a surrogacy agreement, she becomes the legal mother. She argued that this logic applies “a fortiori” to the Sophia case—even though no surrogacy agreement ever existed.

Minority Opinion: Blood Still Matters

Justice Barak-Erez fiercely opposed this interpretation, noting that the entire surrogacy framework relies on consent, and in this case, the biological parents never consented to give their child to a stranger. She stressed that genetic connection was the driving intent behind the IVF process and called the court’s decision a dangerous erasure of reproductive rights.

Legal Aftershocks

Attorneys for the surrogate parents expressed “overwhelming emotion” and “hope for peace and quiet.” But lawyers for Sophia’s biological parents warned of “severe implications” for fertility treatments and parental rights across Israel.

This ruling doesn’t just decide Sophia’s fate - it rewrites the meaning of parenthood in Israel. It rewards institutional failure, punishes biological connection, and leaves future IVF patients vulnerable to losing their children due to accidents they did not cause.