Errors in IVF Treatment: Storage of Embryos and Reproductive Cells, Consent and Compensation

Failure to achieve a pregnancy in IVF treatment (tüp bebek) is not, on its own, medical malpractice. However, wrong identification, improper storage, loss of records, unauthorised use, unlawful destruction or inadequate information may each be an independent ground for liability. The physician's duty of treatment and the centre's duties to protect, monitor and document embryos and reproductive cells must be examined separately. To claim compensation, the breach, the damage and the causal link between them must be established. The existence of a consent form does not make this examination unnecessary. [K1, K2, K3]

In this field, biological uncertainty and preventable organisational error are not the same. Even if treatment does not succeed, the process may have been carried out properly, both medically and legally. Conversely, even where a pregnancy has occurred, there may be serious problems such as the use of another person's cell or procedures carried out without consent. The focus of this article is not the errors that occur at birth, but the specific duties that arise from treatment, laboratory procedures and storage.

How is a failed treatment distinguished from malpractice?

The legal assessment must be made not on the result learned afterwards, but on the medical condition known at the time of the procedure and the applicable standard. Age, ovarian reserve, sperm characteristics, previous attempts and other clinical factors are assessed for each patient. What effects these factors have is a matter of medical expertise. A general internet success rate does not prove fault in a concrete file. [K2, K3]

The main questions to be investigated are: the suitability of the chosen method, the medication and monitoring process, the tests required, laboratory practice, the transfer plan and the management of complications. A deficiency under any of these headings can lead to a legal consequence only when it is linked to damage and causation in the file. The explanation "the embryo did not develop" and the claim "the embryo was recorded under another person's file" are not the same examination.

For errors during pregnancy and delivery, you may read our article on birth errors and permanent harm to the child.

IVF treatment does not in itself guarantee a child

In medical treatment, the physician generally has a duty of careful service that complies with standards. The "contract for work" (eser sözleşmesi) approach, under which a result is owed and which is debated in purely aesthetic interventions, cannot simply be carried over to IVF, so that every unsuccessful attempt would count as a breach of guarantee. The biological outcome of the reproductive process and the proper performance of specific laboratory and storage acts are separate matters. [K2, K3]

Where the centre has committed, specifically to the patient, to a success or a fee refund, the content, conditions and lawfulness of that commitment are examined separately. A marketing promise cannot make a scientifically impossible success guarantee lawful. The provisions of Article 24 of the Regulation on exaggerated results and success rates and on inaccurate information are also taken into account. [K1]

The storage relationship is a separate matter

Secure identification, correct matching of a sample to the right person, storage under suitable conditions, release only to authorised persons and record-keeping are concrete duties that are independent of the treatment outcome. The defence that "pregnancy was not guaranteed" does not explain release to the wrong person or a preventable storage error. On the other hand, it cannot be assumed that every loss of viability after thawing is necessarily caused by equipment failure. The laboratory data must be examined. [K1, K2]

Which legal framework applies in Türkiye to treatment and storage?

The Regulation on Assisted Reproductive Treatment Practices and Assisted Reproductive Treatment Centres (ÜYTE), dated 30 September 2014 (hereinafter "the Regulation"), determines the authority of centres, staff, records, consents and the storage system. Additional Article 1 of Law No. 2238 on the Removal, Storage, Grafting and Transplantation of Organs and Tissues (Organ ve Doku Alınması, Saklanması, Aşılanması ve Nakli Hakkında Kanun) also sets the legal limits of assisted reproductive treatment. Beyond the general health operating licence of the hospital or centre, it should be checked whether it holds a specific authorisation for this practice. [K1, K4]

Under the Regulation's application, the basic framework is married spouses and the use of their own reproductive cells. Donor cells, another person's embryo and plans that involve a gestational carrier cannot be accepted as freely permitted within the same legal framework. A foreign patient who receives services in Türkiye also does not gain a right of access to a method that is prohibited in Türkiye merely because of their nationality. The rules of other countries are assessed separately. [K1, K4]

However, storing reproductive cells or gonadal tissue for medical reasons is not the same process as a married couple creating an embryo. Under the medical conditions foreseen in the Regulation, the consent the person gives for their own cells or tissue is important. There should be no generalisation that marriage is required in every case for such storage. [K1, K5]

Why must embryos be separated from sperm, eggs and gonadal tissue?

Reproductive cells refer to eggs and sperm; gonadal tissue refers to the tissue of the relevant reproductive organ. An embryo relates to the stage of development after fertilisation. This biological distinction matters legally for who must give consent, for extending storage, and for the conditions of use and destruction. [K1, K5]

Consent to storage should not be read as unlimited authority for every future use. Freezing, thawing, transfer and destruction each produce different consequences. The record-keeping provisions of the Regulation also set out separate forms: Annexes 9, 10 and 11 for embryos, and Annexes 12, 13 and 14 for gonadal tissue and cells. [K1]

Which procedures must the consent expressly cover?

The consent must explain the true scope of the treatment. Egg retrieval, the surgical procedure to obtain sperm, anaesthesia, the fertilisation method, embryo transfer and the explanations needed about storage cannot be substituted for one another. The patient's personal risks and reasonable alternatives must also be explained in understandable language. [K1, K3]

The fact that the couple signed one form together does not show that the risks of each separate surgical intervention on one of the spouses were explained. In particular, surgical sperm retrieval from a man carries different risks from the procedures and drug treatment applied to a woman. Which explanation was given to which person, and when, should be recorded. [K3]

For the effect of consent forms on liability, you may also read our article on whether a consent form releases the doctor from liability for an aesthetic result.

The Constitutional Court's Ahmet Acartürk decision directly addresses this distinction

In the Constitutional Court's decision in Ahmet Acartürk (application no. 2013/2084, 15 October 2015), a Micro-TESE operation carried out within an IVF procedure was examined. In the document the couple signed concerning IVF-ET and embryo transfer, the absence of the necessary explanation about the Micro-TESE procedure applied to the male patient was important. The Court held that information and consent had to be shown for each procedure and found a violation of Article 17 of the Constitution. [K3]

In the decision, the claim of technical medical error and the consent problem were treated separately. A retrial was ordered; in addition, non-pecuniary damages were awarded for the length of the proceedings. This amount should not be presented as the definitive compensation for all the bodily harm alleged to have arisen from the Micro-TESE. The decision's contribution to this article is that a general IVF form does not replace procedure-specific information.

What information should a storage contract contain?

The definition, number and record identity of the stored cells or embryos; the start date, the renewal procedure, the fees, the centre's contact details, transport, and what happens on closure should be made clear. Where a contact address changes or the centre cannot reach the patient, the consequence should not be written as an unlimited authority to destroy in place of the statutory conditions. [K1, K2]

A statement such as "I accept every kind of loss risk" does not by itself remove the centre's fault. Article 115 of the Turkish Code of Obligations (TBK) and the unfair-term provisions for consumer contracts matter for the validity of clauses that exclude liability. Information about the normal biological risk and an attempt to remove liability for organisational or storage fault are assessed separately. [K2, K6]

How are storage periods, annual renewal and destruction assessed?

The Regulation provides that, where storage exceeds one year, a signed application showing that consent or the request continues must be submitted. For embryos, the joint request of the spouses is important; for reproductive cells and gonadal tissue, the consent of the person concerned is important. The fact that the initial contract was made for many years does not mean that the annual renewal provisions have lapsed. [K1]

The five-year storage limit and the matter of permission from the Ministry for longer storage should be checked against the type of sample stored, Article 20 of the Regulation, the relevant form and the specific permission. Telling a patient, without documents, that "it will be stored indefinitely" or that "after five years it will be destroyed without any action being required" is not a reliable statement. The end of the period, the extension application, the permission granted and the committee procedures should be visible in the file. [K1, K5]

Non-payment of a fee is not an automatic instruction to destroy

Whether a storage fee has been paid is not the same question as whether consent continues. The centre must assess the contract, the legislation, the notices and the authorised destruction procedure together. A staff member's oral statement that "we destroyed them because payment did not arrive" does not remove the need for a legal basis, a date, an authorised committee and minutes. [K1, K2]

The patient, too, should keep track of their renewal and contact obligations. The petition, proof of handover or dispatch, the centre's reply and the proof of payment should be kept together. The absence of one document does not mean that all the other documents are disregarded; a dispute is assessed on the whole file.

If a spouse dies, an old text should not be used on its own

The 10th Chamber of the Council of State (Danıştay), in its decision of 17 April 2025, E.2022/2208, K.2025/2091, made an important distinction. The Chamber dismissed the case in respect of the word "death" in Article 20(4) of the Regulation concerning reproductive cells and gonadal tissue. It annulled the words "death of one of the spouses" in Article 20(5) concerning embryos, and the implied rejection of the specific application. The fact that the embryo was created with the intention of having a child together within marriage was important in the assessment. [K5]

Accordingly, the sentence "if one spouse dies, all embryos are always necessarily destroyed" disregards this decision. Conversely, the decision does not mean that sperm and eggs may always be used after death or that every application is accepted without conditions. Nor is it a decision that removes all the other grounds for destruction, such as divorce or annual renewal.

The decision examined was left open to appeal to the Plenary Assembly of Administrative Litigation Chambers (İdari Dava Daireleri Kurulu). For this article, dated 13 October 2026, the subsequent legal remedy and the finality of the case could not be verified. Before any destruction or use decision is made, the current judicial position, whether a stay of execution exists, and the administration's practice should be confirmed from the file. This uncertainty does not justify an irreversible destruction or use based solely on an old internet text.

Which questions must identification and laboratory records answer?

Article 19 of the Regulation governs the protocol, surgical intervention and laboratory records, the checking of identity and marriage documents, the patient file and the forms specific to each procedure. Before storage, the identification tests and the conditions and exceptions in Article 20 are also assessed. It should not be assumed that the same test is mandatory at the same time in every file. [K1]

In a claim of loss or confusion, it is not enough to look only at the final report. It should be possible to trace from which person and on which date the sample was taken, how it was coded, which laboratory procedures it went through, in which container or compartment it was stored, who removed it, and to whom it was transferred. Earlier versions of electronic records and their change logs may also be important.

• Identity verification, sample collection and handover minutes.
• Egg retrieval, sperm preparation, fertilisation and embryo development records.
• Freezing and thawing dates, and records showing the count and the storage location.
• Depending on the system used, tank, temperature, liquid nitrogen, alarm and maintenance records.
• The times at which a fault, interruption or unusual event was noticed and the response.
• Records of authorised staff, duty rosters, training, inspections and transfers to other centres.

This list does not claim that every centre must use the same device or a single alarm technology. The scope of the technical obligation is assessed under the legislation, the characteristics of the equipment, and the standards accepted at the time of the procedure. The purpose of the records is to allow the event that occurred and the measures taken to be reconstructed.

How should claims of loss, deterioration or confusion be handled?

First, the centre's written explanation, an inventory of the existing samples and the date on which the event was noticed should be requested. The safety of cells or embryos that can still be protected is the priority. If the procedures needed to investigate the cause would themselves have irreversible consequences, they should not be carried out without appropriate expertise and legal authority.

Where there is a suspicion of identity confusion, the privacy of other patients must also be protected. Rather than comparing names or laboratory results by posting them on social media, the necessary examinations should be carried out through the competent authority or a court. If genetic examination is needed, its scope, consent, procedure and the safety of the biological samples are determined separately. [K7, K8]

If there is a risk that evidence will be lost, preservation of evidence under Article 400 et seq. of Law No. 6100 on Civil Procedure (HMK) and, where the dispute requires it, other temporary legal protection options may be considered. Where there is a risk of irreversible destruction or use, an interim injunction in private law is subject to different conditions, and in administrative acts a stay of execution is subject to its own conditions. Neither is certain to be granted in every concrete application. [K7, K9]

Does closure of a centre or transfer to another centre end responsibility?

No. Article 26(5) of the Regulation requires that, on closure, the information and records concerning patients and stored samples be notified to the provincial health directorate (il sağlık müdürlüğü) within three days at the latest, and that the continuation of storage and procedures be handed over, by signed minutes, to the centre designated for this purpose. Closure, a claim of bankruptcy or a change of company name does not mean that the embryos held are left unclaimed. [K1]

Where a patient transfers to another centre in Türkiye at their own request, the written applications under Article 20, paragraph 7, notice to the directorate, the technical equipment, the seal and the conditions of handover are important. Although the Regulation contains a provision on responsibility and cost for transfer, this provision should not be interpreted as a blanket exemption from responsibility for the institution's own technical error or fault. [K1, K2]

The route provided for transfers between domestic centres does not mean that cells or embryos may be taken abroad in a patient's luggage. Dispatch abroad is assessed separately in terms of the relevant permissions and prohibitions and the rules of the receiving country. The fact that a medical tourism agency arranges the trip does not by itself give it authority to carry biological samples. [K1, K4]

A Court of Cassation case on destruction of embryos shows the importance of identifying the correct defendant

The decision of the 3rd Civil Chamber of the Court of Cassation (Yargıtay 3. Hukuk Dairesi) dated 11 October 2021, E.2021/6107, K.2021/9828, concerns a claim for pecuniary and non-pecuniary damages based on the alleged destruction of frozen embryos. The first-instance court dismissed the pecuniary claim because it had been withdrawn, and partly accepted the non-pecuniary claim. The Court of Cassation, however, quashed the judgment because of problems with the company name, service of documents and the joinder of parties. [K10]

The decision cannot be read as meaning that every couple is definitively entitled to a fixed amount of compensation for the loss of embryos. Other objections on the merits were not examined at that stage. The practical lesson is that the trade mark, branch name, operating company and the legal entity undertaking the service must be identified through documents. The statement "the centre has closed" does not replace an inquiry into which person breached which obligation.

For which losses can compensation be claimed?

The costs of unnecessary treatment or treatment that has to be repeated, storage fees, new medication and procedures, necessary travel, loss of earnings and bodily harm may be the subject of a claim, depending on the nature of the event. The refund of the whole fee should be assessed by separating defective service from whether the other services were actually and properly provided. [K2, K6]

For non-pecuniary harm, the nature of the interference with the reproductive will, bodily integrity or private life is important. The harm suffered by each of the spouses should be assessed separately. Loss of an embryo is not a harm that can simply be calculated by the market price of an item. At the same time, even in an event of strong emotional weight, the elements of liability and the basis of the claim should be shown. [K2, K5]

In claims of reduced chance of having a child or loss of a last chance, the previous reproductive capacity, the remaining options, the status of the lost samples and expert assessment become important. Under Turkish law, no standard percentage or fixed compensation should be calculated for every "loss of chance" claim. Assuming that a pregnancy and birth that did not in fact occur were certain, in order to establish the damage, creates problems of proof.

The individual conduct of the physician, the work of the laboratory, the organisation of the centre and, where present, the conduct of the equipment or service supplier may all be examined together. However, a single administrative title of responsibility does not mean that all persons owe compensation to the same extent. It should be clear which duty, which breach and which causal link of damage is being asserted. [K1, K2]

Which questions should be put to the expert?

An expert examination should not be reduced to the question "was the treatment successful?". The expertise required, whether in gynaecology, urology, embryology, genetics or technical equipment, should be determined by the problem in the file. Under Articles 266 and 281 of the Code of Civil Procedure (HMK), the field of expertise, the reasoning of the report and the answering of objections are important. [K7]

In the examination, for example, the following questions may be put: Can it be shown that the record belongs to the right person? Did the storage conditions deviate? When was the deviation noticed and what was done? Can the biological loss be explained by the ordinary course of events? Is there the consent and the authorised procedure required for use or destruction? Was the protection regime in the legislation applied when the centre was closing?

Where the report leaves these questions unanswered, an objection should not be limited to the sentence "we do not accept the report". Missing documents, conflicting data or unexplained technical points should be identified. A request for a new board or a supplementary report should state its reasons together with the effect on resolving the dispute.

Protection of health and genetic data

An IVF file may contain special-category health and genetic data. The condition for processing data should be determined separately for each process. In view of the current provision of Article 6 of the Law No. 6698 on the Protection of Personal Data (KVKK), it cannot be said that explicit consent is the only legal basis in every process. Nevertheless, the existence of a legal basis does not remove the need for the necessary security measures or the principle of purpose limitation. [K8]

The patient's request for their own records does not justify disclosing the identity and health data of other couples. The transfer of data to a laboratory, physician or cloud service abroad is assessed separately under Article 9 of the KVKK and any applicable special legislation. Consent to treatment should not be treated as a general permission to send all data to undefined third parties. [K8]

For centres that receive foreign patients, you may read our guide on malpractice and compensation for foreign patients, and our article on patient death in medical tourism.

How are the route of application and the time limits determined?

In a dispute arising from a consumer transaction with a private centre, the consumer court, the Consumer Arbitration Committee (Tüketici Hakem Heyeti) according to the applicable monetary threshold, and the provisions on mediation as a condition precedent to litigation are assessed. Where a public hospital or an administrative body's decision on permission or destruction is at issue, the administrative application and litigation routes are different. Where a criminal offence is suspected, the criminal process is also examined together with the nature of the event and the rules on permission for health personnel. [K6, K9]

The time limits for claims based on a contract depend on the nature of the service. The defective-service rules in Article 16 of Law No. 6502 on Consumer Protection, the tort time limit under Article 72 of the Turkish Code of Obligations (TBK) and contractual time limits do not share the same starting point and exceptions. For administrative action, the application periods of Article 13 of Law No. 2577 on Administrative Procedure and, where the decision is an express or implied rejection, the relevant time limit for an action are also taken into account. Where a sample stored for years is newly found to be lost, the date of the event and the date of discovery should be specifically documented. [K2, K6, K9]

For advertising and treatment promises in medical tourism, you may read our article on misleading advertising in medical tourism and our page on medical malpractice and physician error claims.

A hypothetical tank failure file

Suppose a couple learns months later that there was a tank problem at the centre where their embryos were stored. The centre says that "pregnancy was not guaranteed in any case." In this hypothetical example, the first step is to determine whether the couple's embryos were affected by the event, their record identities and their current status. The failure, maintenance, alarm and intervention records are then examined. The need for re-treatment, and its connection to the previous clinical condition, is explained with expert opinion.

The fact that other couples were also affected in the same event does not by itself determine the amount of this couple's loss. The storage contract, number and condition of samples, alternative treatment options and personal harm may differ in each file. The centre's general problem and the basis of an individual claim should be connected to each other; neither should replace the other.

Conclusion

In an IVF dispute, the basic distinction lies between the uncertainty of biological success and the concrete duties that must be protected and documented. A general treatment consent does not cover each separate intervention, and a storage consent does not cover each use or destruction. Identification, secure storage, annual renewal, transfer and closure records are central to the assessment of compensation. In particular, for the use of embryos after death, the Council of State decision of 2025 should be taken into account, and definitive generalisations based on an old text should be avoided.

Frequently Asked Questions

If IVF treatment fails, is the fee always refunded?

No. Failure is not in itself a fault. The proper performance of the service, the contract and any valid fee-refund commitment are examined. If there is defective service or a breach that gives rise to liability, the rights are assessed separately. [K2, K3, K6]

Is a general IVF consent also sufficient for Micro-TESE?

A general form that does not explain the procedure and its related risks cannot be accepted as sufficient. The Constitutional Court's Ahmet Acartürk decision clearly shows the importance of information specific to the procedure in relation to surgery on a male patient. [K3]

If the first storage contract runs for five years, is action needed every year?

The annual consent or request renewal provisions of the Regulation apply separately. The fact that the contract runs for many years does not remove this requirement. It is useful to keep the signed application and the centre's reply. [K1]

If my spouse dies, will our embryos necessarily be destroyed?

No definitive answer can be given in this form. The Council of State's 2025 decision annulled the reference to death concerning embryos, and reached a different conclusion for reproductive cells and tissue. In the concrete case, the current legal remedy position, the permission and the practice should be checked. [K5]

If a centre closes, who is responsible for protecting the embryos?

The Regulation provides for the continued protection of the samples by notice to the provincial health directorate and handover to a designated centre by signed minutes. Closure does not end all obligations; the roles of the operator and the persons concerned are examined. [K1]

Can I take my cells or embryos to another centre?

A transfer within Türkiye is possible under the application and technical conditions in the Regulation. Personal transport or dispatch abroad is not the same procedure. The relevant permissions and transport conditions should be assessed separately. [K1, K4]

If I suspect an embryo mix-up, should I search for other patients on social media?

Openly sharing personal and genetic data may lead to new violations. It is more appropriate to protect the records and carry out the necessary identity examination through the competent authority or a court. There is no general right to disclose other people's information. [K7, K8]

If the consent form says that I accept all the risks, does my right to sue end?

No. A disclosed biological risk and an exemption from liability for fault are separate matters. The scope of the consent is assessed together with real information, Article 115 of the Turkish Code of Obligations (TBK) and the unfair-term provisions. [K2, K6]

Is there a fixed compensation schedule for loss of embryos?

The legislation and decisions relied on in this study do not create such a schedule. The violation, the personal harm, the need for new treatment and causation are assessed. A first-instance amount from an old case cannot be used as a definitive and current benchmark, despite the quashing of that judgment. [K2, K10]

Sources and legal bases

K1 — Regulation on Assisted Reproductive Treatment Practices and Assisted Reproductive Treatment Centres (Üremeye Yardımcı Tedavi Uygulamaları ve Üremeye Yardımcı Tedavi Merkezleri Hakkında Yönetmelik), Official Gazette (RG) 30.09.2014/29135; especially Articles 18–20 and 23–29, with amendments. Text published under the Ministry of Health. The provision on post-mortem embryos is assessed together with the court decision in K5.

K2 — Turkish Code of Obligations No. 6098 (6098 sayılı Türk Borçlar Kanunu); especially Articles 49, 54, 56, 58, 72, 112, 115–116, 146–147 and 502–506. Current official text.

K3 — Constitutional Court, Ahmet Acartürk, application no. 2013/2084, 15.10.2015; especially §§56, 63–71 and 85–90. Official announcement, full text of the decision, login may be required.

K4 — Law No. 2238 on the Removal, Storage, Grafting and Transplantation of Organs and Tissues (Organ ve Doku Alınması, Saklanması, Aşılanması ve Nakli Hakkında Kanun), especially Additional Article 1. Current official text.

K5 — Council of State, 10th Chamber (Danıştay 10. Daire), E.2022/2208, K.2025/2091, 17.04.2025. Distinction between Article 20(4) and 20(5) of the Regulation; partial rejection and partial annulment. The right of appeal has been left open; the subsequent legal remedy position could not be verified in this research. Full text of the decision, login may be required.

K6 — Law No. 6502 on Consumer Protection (6502 sayılı Tüketicinin Korunması Hakkında Kanun); especially Articles 5, 13–16, 68, 73 and 73/A. Current official text.

K7 — Law No. 6100 on Civil Procedure (6100 sayılı Hukuk Muhakemeleri Kanunu); especially Articles 189–190, 199, 219–220, 266, 281, 389 and 400–405. Current official text.

K8 — Law No. 6698 on the Protection of Personal Data (6698 sayılı Kişisel Verilerin Korunması Kanunu), especially Articles 4, 6, 9 and 11–14; current provisions as amended in 2024. Current official text.

K9 — Law No. 2577 on Administrative Procedure (2577 sayılı İdari Yargılama Usulü Kanunu), especially Articles 7, 10–13 and 27; Additional Article 18 of Law No. 3359. Administrative Procedure Law, 3359.

K10 — Court of Cassation, 3rd Civil Chamber (Yargıtay 3. HD), E.2021/6107, K.2021/9828, 11.10.2021. Quashing for joinder of parties and service in a claim concerning the destruction of embryos; other objections on the merits were not examined. Full text of the decision, login may be required.