“Genetic affinity” an actionable head of damage against IVF clinic

14 February 2018 by Rosalind English

ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal  [2017] SGCA 20 – read judgment

It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology.  This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest  in the area of medical science,

where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.

Background facts

The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred  to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed  to discard the disposable pipettes that had been used after each step of the IVF process.  This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s.

The Appellant sued the Respondents in the tort of negligence and for breach for contract and sought damages under two principal heads of claim. The first was for pain and suffering relating to the pregnancy as well as damages for mental distress. The second was for upkeep costs and it included, among other things, the cost of enrolling Baby P in an international school in Beijing where the Appellant and her Husband presently reside, the cost of tertiary education in Germany, travelling expenses, medical expenses, and the cost of feeding and caring for Baby P until she is financially self-reliant. The Court referred to this second head of claim as the “upkeep claim”. for, among other things, the expenses she would incur in raising Baby P (“upkeep costs”). The Respondents conceded liability but argued that the Appellant should not be allowed to recover upkeep costs. They argued that the child is a blessing, and that there was something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation.

Andrew Phang Boon Leong JA (delivering the judgment of the court) observed that this had “been a difficult case, possibly one of the most difficult to come before this court thus far.” From the outset, the court was on the horns of a dilemma: if it allowed the Appellant the upkeep costs that she sought, that would in effect denigrate the worth of Baby P who would be treated in effect as a continuing source of loss to her parents. If she were only to be awarded the modest sum for pain and suffering the court would fail to recognise the real loss she had incurred as a result of the clinic’s negligence, not having a child with her husband but having a child fathered by a complete stranger. She had not sought IVF treatment for that.

The Court was troubled from the outset by the nature of the upkeep claim, and not simply whether it was legally sustainable. Such a claim, as a statement of the consequences of parenthood, was “strikingly inadequate.”

It has the effect of selecting – out of the myriad of legally, morally, and socially significant obligations that attend the institution of parenthood – only the financial costs of raising a child and focusing on that as the subject of the upkeep claim. This is a problem which is not confined only to this case but generally afflicts the case-law in this area.

In the end, the Court came to the view that the upkeep claim should not be allowed. In their judgment, this was a head of damages which was contrary to public policy and should not be recognised in Singapore. However, they were prepared to recognise that, in the circumstances of this case, the Respondents’ negligence had caused the Appellant to suffer a loss of “genetic affinity”, and that this should be an actionable head of damage.

Reasoning behind the Court’s decision

The problem with a claim for child-rearing costs is that it juxtaposes the private world of tort law with a world that is imbued with personal and public views of morality. As the Canadian judge Lax J said in an Ontario case:

It asks whether tort law is bold enough or foolish enough to embrace as a harm that which we so clearly regard as a good. (General Division of the Ontario Court of Kealey v Berezowski (1996) 136 DLR (4th) 708 at 731a–d)

The Court explored in some detail what it called the three categories of “reproductive wrongs”:

1. wrongful life: a claim brought by the child itself in cases where it is born due to the negligence of the healthcare professional and suffers from a disability or some other disadvantage; these claims are generally barred for reasons of public policy
2. wrongful birth: a claim brought by the mother who would have terminated the pregnancy but for the negligence of the healthcare professional
3. wrongful conception: a claim brought by the parents of a child born as a result of a failed sterilisation operation

This particular claim did not fall into any of these categories. The Court observed that there has only been one wrongful fertilisation case in which the subject of upkeep costs was considered by a court of law. This was the decision of the New York State Supreme Court in New York County in Andrews v Keltz15 Misc 3d 940 (2007) (“Andrews”), where the mistake likewise consisted of the insemination of the plaintiff-mother’s egg with the sperm of third party stranger. The plaintiff delivered a healthy child and subsequently brought a claim for upkeep costs. Her claim was dismissed on the basis that public policy precluded recovery for the ordinary costs of raising a healthy child. In the UK of course the question of upkeep costs for a healthy child has been settled by McFarlane, which stands for the proposition that a medical professional does not, for reasons of policy, owe a duty of care in respect of the costs of raising a healthy baby (McFarlane and another v Tayside Health Board [1999] 3 WLR 1301). Damages may be claimed for the additional costs of raising a child born with disabilities (Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266).

But in seeking to claim for upkeep the parents were merely saying that they never planned to have this child (that is to say, the child who was born as a result of the use of the wrong genetic material) but instead planned for and desired to have a child with whom they would share genetic kinship. As the Court put it, the claim for upkeep was “simply the last link in the concatenation of obligation, breach, causation, foreseeability, and damage that forms the chain of civil liability in the law of negligence”.

Having acknowledged this, the Court ultimately found against the upkeep claim, for two main reasons.

1. 1. The obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally cognisable head of loss.

1. To recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the Appellant in a position where her personal interests as a litigant would conflict with her duties as a parent.

One factor which places this judgement in its Singaporean context is the putative financial benefit of having a child.  There is the generally accepted argument that any financial losses faced by a parent should not be offset by a measure of damages representing the benefit that a child brings (which is how it is calibrated in US law). As a general statement, said the Court in the instant case, it is true that the benefits a child brings are incommensurable with the pecuniary costs of the child’s upkeep. However, in Singapore the truth is

that children eventually do bring pecuniary benefits in the form of financial support in old age. In Singapore, the obligation is not just a moral but also a legal one, because of the operation of the Maintenance of Parents Act (Cap 167B, 1996 Rev Ed).

Leaving aside the incidental benefits of children under Singaporean law, the Court put in some serious consideration into the kinds of costs of parenthood that cannot be calibrated in money. They called this loss of autonomy.

The attraction of a focus on loss of autonomy is that it would seem to avoid the policy objections that beset the upkeep claim. A claim of this sort would fix not on the liabilities arising out of the care of the unplanned child (which is the gravamen of the objection against the award of upkeep) but on the independent interests of the parents which have been transgressed as a result of the negligent act [emphasis in the judgment]

Ultimately – perhaps discouraged by the sheer weight of comparative material on the point – the judges decided not to  take the step of recognising a loss of autonomy (without more) as an actionable injury in its own right. In their judgment,

such a development would pose significant problems of legal coherence and would be contrary to well-established principles on the recovery of damages

They went on to say that the loss of autonomy principle would not fully reflect the Appellant’s loss:

By reason of the Respondents’ negligence, the Appellant has suffered a severe dislocation of her reproductive plans that is constituted principally by the fracture of biological parenthood. This is a complex concept; and to say simply that she has suffered a “loss of autonomy” is only correct at the highest level of generality.

To say, as the Respondent did, that the issue here was merely one about “‘incorrect’ / ‘undesired’ genetic mix or skin tone” (which the Court categorically stated was language that they abjured), was to completely miss the point. The desire for genetic affinity is complex and multi-faceted. It is, at its core, a desire for identity bounded in consanguinity. The ordinary human experience is that parents and children are bound by ties of blood and share physical traits. Families cannot be thought of as just another social group such as a football club or a running club.  The obligations of kinship are inherited and not voluntarily assumed.

The judge cited an analogous case from Northern Ireland. In A and B by C (their mother and next friend) v A – Health and Social Services Trust [2011] NICA 28 (“A and B”), the appellants were twins born as a result of successful IVF treatment. The mother’s eggs were used in the IVF process but the sperm was donated by the respondent-Health and Social Services Trust. The usual practice of the respondent would be to request only for sperm from “Caucasian” or “white” donors for white couples, as the appellants’ parents were in that case. However, due to a mistake, sperm from a donor who identified himself as “Caucasian (Cape coloured)” was used instead (as explained in the judgment, persons from the Cape coloured community in South Africa have mixed ancestry and they have different racial markers, including different skin tones). The appellants brought suit on the ground that because of the respondent’s negligence, they had been born a different skin colour from their parents. This, they argued, had led to their being the subject of abusive and derogatory comments and hurtful name calling which had caused them emotional distress and affected their quality of life. The trial judge dismissed the suit on the ground that a difference in skin colour could not constitute a form of damage and his decision was upheld on appeal by the Court of Appeal.

Leong JA said this judgment gave him “pause’,  as it failed to recognise the complex role that physical resemblance, race, and cultural and ethnic identity have had and continue to have on our individual well-being, as they so evidently had on the Appellant’s in the case before him.

What is clear is that the Appellant would be ill-served by a judicial refusal to fully engage with these issues in order to recognise the true loss which has been suffered. In our judgment, the Appellant’s interest in maintaining the integrity of her reproductive plans in this very specific sense – where she has made a conscious decision to have a child with her Husband to maintain an intergenerational genetic link and to preserve “affinity” – is one which the law should recognise and protect.

The Court therefore held that the damage to the Appellant’s interest in “affinity” was a cognisable injury that should sound in damages.

As for quantum, the Court decided to benchmark the eventual award as a percentage of the financial costs of raising Baby P. Although they had determined that this is not an appropriate case in which to award upkeep costs as such to the Appellant, the financial costs of raising Baby P were not wholly irrelevant as, absent such costs, there would be no other criterion or standard by which to assess the quantum of damages that ought to be awarded. It had the practical advantage of preventing the court from “having to pluck a figure out of thin air, so to speak.”

In our judgment, it is clear that substantial damages ought to be awarded to the Appellant. Whilst (as we have already noted), the Appellant and her Husband have accepted Baby P as their own, the reality of the situation cannot be denied (see, especially, the anguish, stigma, disconcertment, and embarrassment suffered by the Appellant and her family as expressed in the Appellant’s affidavit.

In the circumstances, the Court was of the view that the Appellant ought to be awarded 30% of the financial costs of raising Baby P as compensation, which was an amount that, we consider, properly reflects sufficiently the seriousness of the Appellant’s loss .

This was not considered to be a case in which punitive damages would be appropriate.

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