ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children.
ARB sought damages for the pecuniary losses relating to E’s upbringing (past and future) incurred as a result of the clinic’s breach of contract. Jay J found that the clinic had been in breach of contract. Nevertheless, policy barred the granting of damages for the birth of a healthy child: see McFarlane v Tayside Health Board [2000] 2 A.C. 59 and Rees v Darlington Memorial Hospital NHS Trust[2004] 1 AC 309.
ARB was granted permission to appeal against the decision that he was not entitled to damages for breach of contract, since, he argued, the public policy rule based on McFarlane only applied to claims in tort.
The appeal was refused.
Reasoning behind the judgment
In both the Rees and McFarlane cases it was accepted that the cost of the upbringing of a healthy child was directly caused by the defendants’ negligence and reasonably foreseeable. In the instant case, it was not disputed that the similar loss claimed would have been in the reasonable contemplation of the parties in the event of a breach of the contract. At the core of the legal policy preventing recovery of the loss in Rees and McFarlane was the impossibility of calculating the loss, given the benefits and burdens of bringing up a healthy child. If it was impossible for a court to calculate the value to be attributed to the benefit of a child, so as to set off such value against the financial cost of the child’s upbringing as a matter of legal policy in tort, it was hard to see how the task was possible if such loss resulted from a breach of contract. In addition, it was morally unacceptable to regard a child as a financial liability.
It made no difference to this conclusion that a contractual claim was founded on a strict obligation. The breach of contract arose in the absence of a liquidated damages clause in the contract, with the consequence that the obligation to pay damages arose by implication of the common law. There was nothing in the contract modifying the approach of the common law, and common law in this context includes legal policy. It followed that there was no legal basis upon which to differ in terms of the recovery of the claimed loss as between contract and tort. Nor could ARB’s claim be distinguished on the basis that the clinic had been paid privately for its services (it would be invidious to distinguish between NHS and private patients on this basis: see paras 33-37 of judgment).
The CA also upheld the lower court’s conclusion that the clause in the clinic’s contract imposed a strict obligation on the clinic under a duty not to thaw or replace an embryo without the written consent of both the father and R. The reverse of this obligation was that neither of them would be entitled to object if the clinic refused to thaw or implant an embryo without the written consent of both of them. There was nothing in its wording which limited the clinic’s obligation to a duty of reasonable care. The duty not to act without both parties’ written consent was a straightforward process which required the physical obtaining of a written document. It was not a process dependent on medical or scientific skill.
Was the clinic in breach of a duty to take reasonable care to obtain the father’s informed consent by reason of its standard procedure? Consent was the cornerstone of the Human Fertilisation and Embryology Act 1990. A procedure which permitted delegation of the obtaining of consent to one of the parties, a person not employed by the clinic and who could have his/her own reasons for providing false consent, was not only illogical, it made a mockery of a process which was there to obtain valid written consent. The illogicality of this process represented an abrogation by the clinic of its duty to obtain consent. In Montgomery v Lanarkshire Health Board [2015] UKSC 11 the Supreme Court identified the requirements of consent which makes these failings the more stark. The identified practice of this clinic was neither reasonable nor responsible.
Jeremy Hyam QC and Suzanne Lambert of 1 Crown Office Row acted for the respondent clinic in this appeal. They have not had anything to do with the writing of this post.
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