A bitter legal battle over an eight-year-old boy has laid bare a shocking alleged embryo mix-up at a Durban fertility clinic – and raised complex questions about biology, motherhood and a child’s best interests.
A black couple from Ballito have turned to the high court in Durban to force an Indian woman to agree to a DNA test on the boy, convinced he was born from their embryo which, they say, the Care Clinic in Westville mistakenly implanted in her nine years ago.
For now, they insist they are not trying to take the child away. What they want is clarity – and ammunition for a damages claim against the clinic. But standing in their way is the woman who has raised the boy since birth, who says she is “the only mother he knows” and argues his care and custody should remain with her.
This week, Judge Peter Olsen refused to simply sign off on a DNA test. Instead, he ordered that an advocate be appointed as curator ad litem – an independent legal representative for the child – to investigate and report back on what would truly be in his best interests before any testing goes ahead.
A whistle-blower, a “black baby” – and a private detective
The Ballito couple’s nightmare began to take shape only last year, long after they believed their IVF journey was over.
Court papers show the couple had struggled to conceive naturally and turned to Care Clinic in 2016. They were told that three embryos had been fertilised and that all three would be implanted. The couple say they were never told that any embryos would remain at the clinic.
They later had a daughter, born in May 2017, and understood this to be the outcome of the IVF procedure using all three “viable embryos”.
Nearly two years later, in March 2018, the clinic contacted them with a strange request. It claimed there was a “remaining egg” and asked for their consent to donate it. Confused – because they believed all embryos had already been used – they nevertheless agreed and signed a consent form. What they did not know, they now say, is that a child supposedly linked to them was already almost a year old at the time.
They state in their affidavit that the clinic then asked them, “ex post facto”, to sign a document reflecting that only two embryos had been implanted in the biological mother and that “spare embryos were donated to another couple”.
“In hindsight we realised that the clinic appeared to be panicking and desperate for us to ‘update’ our initial consent form signed in 2016,” they said.
In March 2019, according to their papers, the clinic told them that the couple who received their “embryo” wanted to meet them. “Again, we were confused because we thought we had only donated an egg, not an embryo,” they said. They signed a document saying they did not want the meeting and let the matter lie.
It was only last year, when they returned to the clinic to pay their final account, that the full horror began to emerge. A receptionist at Care Clinic “blew the whistle”, they claim, and told them an Indian woman who had been a patient at around the same time had given birth to a black boy in June 2017 – just a month after their own daughter was born.
“Suspecting that the child was biologically ours and that our embryo had been used without our permission, we hired a private investigator,” the couple said.
The detective tracked down the birth mother. The wife of the Ballito couple then went to the woman’s workplace to speak to her. According to the couple’s affidavit, the woman made a telling comment: “I knew this day would come,” but also said the boy was in good hands and would never bond with anyone but her.
A mother who sued – and settled
The Indian birth mother does not deny that something went very wrong at the clinic.
In her court papers and in correspondence from her lawyer, she says that after giving birth to a boy “with African features” she became suspicious and sued Care Clinic. The clinic, she says, later informed her that the embryo had come from “patient G”, an anonymous donor.
She confirms that the matter was resolved with the clinic in a confidential settlement, agreed years ago. The clinic, however, is not a party to the current court application for a DNA test.
Care Clinic’s owner, Dr Anil Ramdeo, told the Sunday Times the clinic had “resolved the dispute with the birth mother on a confidential basis”. He claimed the Ballito couple had consented “in writing to the anonymous donation” of their embryo.
The couple say this is simply not true. They insist they never consented to donate an embryo, and that when they signed the 2018 consent form they believed they were donating a “remaining egg”, not a fertilised embryo that had already led to a pregnancy.
Ramdeo declined to comment on these details.
“I am the only mother he knows”
When the Ballito couple moved in July last year to apply for a court order compelling a DNA test, the birth mother fought back hard.
At first she opposed the application outright, arguing that the Family Advocate’s office – a state body that looks after children’s interests in family matters – should decide what was best for the boy.
In her affidavit, she said: “It is my submission that it would be in the best interests of the child if his care and custody were to remain with me. I am the only mother he knows.”
She accused the couple of harassment. She said that after they tracked her down, their conduct amounted to being “stalked”. She applied for a protection order, claiming they had “unlawfully” obtained her private and confidential medical information from the clinic’s receptionist, fabricated stories to secure meetings, and told her things “could get ugly” if she did not co-operate.
“They fabricated stories to secure meetings with me, harassed me at my workplace and said things ‘could get ugly’ if I did not co-operate,” she said.
The protection order application was opposed by the couple and not pursued further.
The birth mother maintains that when she was confronted at work, she informed the couple that her “matter had already been dealt with in good faith, through legal processes (with the clinic) at the onset about eight years ago” and told them any claim should be directed against the fertility clinic, not against her.
“He must be aware she cannot be his biological mother”
The Ballito couple, for their part, insist they do not – at least for now – want to overturn the boy’s existing care arrangements.
“We are not, at this stage, seeking any parental responsibilities and rights,” they said in court papers. However, they argue that biology matters to the child, and that they need “absolute legal certainty” about whether he is genetically theirs in order to pursue a claim against the clinic.
They also challenge the birth mother’s conduct after the birth.
“The child is of African origin. The birth mother is Indian. Quite clearly she would have known immediately, at birth, that it was not her biological child. She could have approached the court to formalise her status as the parent, which she did not do, and which is suspicious,” they say.
“While she may be the only mother the child knows, what is quite clear is that the child must be aware that she cannot be his biological mother by way of their different races.”
The birth mother, however, stresses that she has been his caregiver from day one and believes moving him or disrupting his life would not be in his interests.
Judge steps in – and child law experts back the move
In court this week, it appeared, for a moment, that the parties were on the verge of agreement. Both sides were prepared to accept an order authorising the DNA test.
Judge Peter Olsen refused to simply rubber-stamp the deal. Instead, he ruled that an advocate must be appointed as curator ad litem to represent the child, engage with all parties and, if necessary, involve psychologists. Only after a detailed report is filed will the court decide on the DNA test and any further steps.
Child rights experts say this was the right call.
Karabo Ozah, director of the Centre for Child Law, said the judge was correct to insist on a curator.
“This process usually enables the curator to engage with the parties and the children to understand the relationship. There may also be a need to involve psychologists. There is no one-size-fits-all,” she said.
Ozah added that a DNA test is likely to be unavoidable in the end, both to give the adults clarity and to protect the child later in life.
She said a DNA test would be necessary so “the parties can know the truth”. It would also be crucial to uncover exactly how the alleged mix-up occurred at Care Clinic, and to ensure that similar mistakes do not happen again.
A case that could reshape trust in fertility clinics
Beyond the human drama – an eight-year-old boy torn between genetics and the only mother he has ever known – the case raises serious questions about oversight and consent in South Africa’s booming fertility industry.
If the court eventually confirms that the child is the biological son of the Ballito couple, it would mean an embryo was implanted in the wrong woman, that both families were allegedly misled about consent, and that the clinic quietly settled with one mother while another was kept in the dark for nearly a decade.
For the boy at the centre of it all, the court’s next steps will determine not just who can claim to be his biological parents, but how – and when – he will be told the truth about his own beginnings.
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