IVF Case – First in the World – Court of Appeal Awards Damages for Loss of Genetic Affinity

This case concerns an egregious breach of safety standards on the part of a hospital which helped our client conceive for commercial gain by promising to perform an in-vitro-fertilization [IVF] using the sperm from her husband. Instead, it used the sperm of a total stranger. The matter was further compounded by the fact that the stranger belonged to a different race from that of the mother or her husband.

Action was commenced – contending that the hospital and its scientific officers had been negligent, breached contractual duties and also committed statutory breaches. The hospital and the scientific officers admitted liability.

In relation to the claim for damages, one of the hotly debated issues related to a claim for upkeep of the child. We argued that the upkeep of the child ought to be borne by the hospital as the mother, whilst she has decided to look after the child with love and care, should not be financially burdened with the costs of raising the child.

The High Court ruled that the claim for upkeep ought not to be allowed as it would be sacrilegious and an affront to morality to compensate the parents as any such ruling would be tantamount to denouncing the value of life. The High Court remained unpersuaded by the arguments based on the majority decision of the Australian High Court which by majority had ruled that however attractive argument of sanctity of life may be, there can be no denying that an unplanned baby had to be properly fed, clothed and looked after resulting in adverse financial consequences for the family which wanted to avoid such expenses.

Our clients appealed to the Court of Appeal. The main argument for the hospital on appeal remained the same, i.e. that the sanctity of life disallowed the upkeep claim. We argued that while sanctity of life was important, it would be wholly unfair and unreasonable to allow such a lofty argument to mask the real issue, i.e. whether the mother must be compensated fairly and in doing so, whether the quantum of damages should include the expenses in maintaining the child.

The case was one of its kind in the commonwealth if not the world, as no courts have had to deal with such a question in relation to an in-vitro fertilization mix-up. The case provided us with a unique opportunity to argue the matter before the Court of Appeal. We submitted among other things, that the matter really dealt with just an appropriate compensation for the mother and that any answer to the question ought to take into account the upkeep expenses.

The Court of Appeal considered this to be a difficult question and admitted that this was a uniquely difficult case to decide. The Court of Appeal considered the issues by looking at basic principles of tort law, law relating to reproductive autonomy and loss of genetic affinity. It even felt the question as to whether the hospital ought to be pay punitive damages to the mother was a matter worthy of consideration.

The decision by the Court of Appeal was that the mother must be compensated and that too, adequately. Even though it did not agree that this ought to include the full costs of upkeep, the court held that the mother in addition to receiving all other types of damages, must also be compensated with damages measuring 30% of the total upkeep costs of the child. It ruled that the upkeep costs should include expenses incurred in raising the child until it reaches financial independence which it held may differ from family to family depending on the individual circumstances and familial situations.

The Court of Appeal while endorsing the sanctity of life argument, left no doubt that patients attending in-vitro-fertilization treatment were vulnerable to scientific mishaps that may bring about disastrous consequences emotionally and financially and that the medical institutions providing such services for commercial gain cannot escape liability from paying their dues when they commit gross negligence.

This interesting and unique case, perhaps the first in the world or at least the commonwealth, provided the Straits Law litigation team an opportunity to ensure that the parents of baby P, as the child was referred to in the proceedings, to receive financial relief which may go some way to help them in the healing process.