While unfortunate mistakes occur, such as the scientist who placed three embryos, instead of two, into a catheter, I hope the couple who is suing the clinic is prepared to explain the lawsuit to their children when they grow older. While an ‘extra’ new life was created, and this is a wonderful thing that should be celebrated, I can understand the family’s wish to receive remuneration to help raise the third child.

A couple who was desperate to have a baby and resorted to IVF is suing a prominent Queensland fertility clinic after the woman gave birth to triplets instead of twins.

In only the second case of its kind in Australia, the 35-year-olds are seeking $510,400 in damages, mostly to cover the costs of rearing their unexpected third child.

The contentious lawsuit, which follows a successful similar claim lodged by lesbian mothers of IVF twins in the ACT in 2005, is likely to spark renewed debate over the legal rights of parents to pursue civil compensation for the birth of a healthy child.

In documents filed in the Brisbane District Court last week, and obtained by The Weekend Australian, the couple alleges they signed a consent form stating they wanted a maximum of two embryos implanted during a 2009 procedure.

The partners, who had endured a lengthy battle to get pregnant both naturally and with medical assistance, were prepared to have twins but preferred one child.

It is alleged that during an embryo transfer at a specialist hospital owned by the fertility clinic, a scientist placed three embryos into a catheter instead of two. They were inserted into the woman’s uterus by her obstetrician. The woman gave birth to three non-identical triplet daughters in 2010.

The couple are suing the clinic and the obstetrician for failing to ensure only two embryos were transferred, in accordance with the parents’ wishes.

The Queensland couple has asked The Weekend Australian to withhold their names to protect the privacy of their three-year-old daughters. The mother said she and her husband struggled with the decision to launch the lawsuit.

“I had a difficult and high-risk pregnancy,” she said. “I had gestational diabetes, the babies were born prematurely and spent eight weeks in hospital after the birth.

“It has been a very taxing few years for us, as there are very few supports for families with triplets.

“We don’t take this legal action lightly … but believe the clinic should be held accountable for the way they mismanaged our IVF plans.” Their lawyer, Maurice Blackburn medical negligence specialist Sarah Atkinson, said Queensland law allowed parents to claim expenses relating to the upbringing of a child born as a result of medical mismanagement. She said the lawsuit was prompted by a breach of contract.

“This couple adore their children, but having three babies at once … is not what was agreed between the IVF provider and the couple,” she said.

Neither the fertility clinic nor the obstetrician has filed a defence. The parties are in pre-court negotiations.

Avant Mutal Group Limited Queensland state manager Harry McCay, for the obstetrician, said his client had not yet seen her former patients’ claim. “(However, she) denies any allegations of lack of care, or liability, and is defending the claim,” Mr McCay said.

“She believes the evidence which is obtained in the pre-court process will support her position.”

In 2009, the High Court upheld a decision of the ACT Court of Appeal awarding the lesbian mothers of IVF twin girls damages of $80,990.59, for the birth mother, and $236,495.70, for both parents. It is believed there have been other claims for similar “wrongful births” resulting from IVF, but they have been settled before reaching court.