Laws of Eve | ‘A healthy child is a blessing’

You may immediately wonder what legal context this week’s article could possibly have. It will become clear. Just read on.

For the many childless persons who crave the opportunity to become parents, but are unable to conceive naturally, in vitro fertilisation is an answered prayer, and the birth of a child is often the welcome result. However, an unlikely tale is recounted in the case of ARB v IVF Hammersmith & Anor [2018] EWCA Civ 2803 that shows how “legal policy” can guide the outcome of cases.

In summary, ARB and R were married. They successfully underwent fertilisation treatment, which resulted in the birth of their son. The couple, who had five frozen gametes, then separated and got divorced, although they consented to allow the gametes to remain in storage.

R, who wanted a second child, forged ARB’s signature on the consent form to authorise the fertility clinic (IVF Hammersmith) to defrost one of the gametes and administer treatment to her. R became pregnant, advised ARB of the pregnancy, and he accepted parental responsibility for the child. However, ARB then sued IVF Hammersmith to recover damages for breach of contract and negligence. Among the remedies he sought was an award of damages for the cost of the upbringing of his daughter, whom he had never consented to conceive.

The Court’s Ruling

ARB’s claim succeeded in respect of breach of contract in the lower court, but failed in relation to negligence and damages. On appeal to the Court of Appeal, findings of negligence and breach of contract were made, but he still did not succeed in his claim for damages. The following points extracted from the judgment explain the court’s ruling:

(1) It was an express term of the agreement between ARB and IVF Hammersmith that ARB’s written informed consent would be obtained before any embryos were thawed. However, the standard operating procedure was flawed in that it required ARB and R to both have their signatures witnessed if they were present at the time of treatment, but had no such requirement if only one party was present. R took advantage of that.

(2) IVF Hammersmith breached the agreement and they were also negligent and were also strictly liable for breach of the agreement.

(3) However, it is morally unacceptable to regard a child as a financial liability.

(4) In monetary terms, it is impossible to calculate the benefit of avoiding a birth and having a healthy child. The emphasis was squarely on the impossibility of undertaking a process of weighing the advantages and disadvantages.

(5) The law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth, it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

(6) For guidance on the legal policy surrounding ARB’s case, the Court of Appeal applied the judgments of the UK Supreme Court in the cases of McFarlane v Tayside Health Board[2000] 2 AC 59 (negligent advice about the effect of a vasectomy) and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 (a negligently performed sterilisation).

Generally, damages for negligence puts the successful claimant in the position he would have been in if the negligent act had not been committed. In this case, it should mean that ARB should be in the position he would have been in if the child had not been born. However, legal policy prevented that outcome.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com.