Wrongful pregnancy: UK Courts continue to refuse compensation
ARB v IVF Hammersmith Ltd  EWHC 2438 (QB) [6 October 2017]
The United Kingdom’s High Court finds that notwithstanding the Defendant fertility clinic’s breach of a contract agreed with a father, he was precluded, on public policy grounds, from claiming damages relating to the costs of raising a healthy, unwanted child. We consider the rationale for the decision and possible implications for Hong Kong.
Wrongful pregnancy claims arise where a couple fall pregnant against their wishes as a result of a party’s negligence, leading to a claim for compensation for the costs of raising the unwanted child. As an example, they could arise as a result of an alleged negligent sterilisation procedure. Similar principles apply to claims for wrongful birth, where the couple falling pregnant is in no way related to a third party’s negligence, but the subsequent birth of the child is (for example in cases of unsuccessful abortions). Such claims have left Courts having to decide between traditional legal principles of measuring loss in claims for breach of contract or negligence, with legal policy considerations.
In ARB v IVF Hammersmith Ltd the Defendant fertility clinic were alleged to have breached their contract with the Claimant father, in proceeding with embryo use in reliance on a forged consent form. The Queen’s Bench Division of the High Court of England & Wales held that notwithstanding the Defendant’s breach of contract, legal policy objections would prevent the Claimant from receiving damages for expenses in relation to raising his unwanted, healthy, child. This is a consistent approach with earlier England & Wales judicial decisions, by rejecting such wrongful pregnancy claims for both claims based in breach of contract, as well for claims of alleged negligence.
How this case will be followed in Hong Kong is yet to be seen as the issue has not yet been tested by the Hong Kong Courts. Whilst the issue could have been determined by the Hong Kong Court of First Instance in Ho Yee-Sup and Another v Dr May Chan Yuk-May and Others  HKCFI 122; HCA 3490/1986, which involved a claim for wrongful pregnancy following a sterilization procedure (where they alleged the consent taking process had fallen below a reasonable standard), the claim failed as the Plaintiff had not successfully established a breach of duty.
Although case law from the United Kingdom is no longer binding in Hong Kong, the views of England & Wales’ High Court in ARB on the legal policy considerations may become relevant when a wrongful pregnancy case reaches the Hong Kong Courts.
The Claimant father, (ARB), ended a relationship with his ex-partner (R), a third party to the case, in May 2010. They had previously, in 2008, received IVF treatment at the Defendant Clinic, resulting in the birth of their son. At that time the Claimant had signed a form named and providing for “Consent to the Use of Sperm and Storage of Embryos in Own Treatment or Research.” The Claimant and R also signed a form headed "Agreement for Cryopreservation of Embryos". That form confirmed the Claimant and R understood that they must both give written consent before any embryos are thawed and replaced and also included an obligation to, annually, confirm that they wish the storage of embryos to continue, and to inform the Defendant of any change in personal circumstances. An embryo was thawed in November 2010 after the Claimant’s relationship with R had broken down.
The Claimant alleged that the birth of his and R’s child (E) was as a result of R forging his signature on the consent form for thawing of embryos provided to the Defendant. He alleged the Defendant had breached their contract with him in that he himself had not signed the consent form (which was verified by the Claimant’s handwriting expert). Accordingly, ARB brought proceedings against the Defendant for breach of contract, claiming damages for the financial consequences, namely the costs of raising E. The Defendant brought a claim against R for an indemnity in the tort of deceit.
The Court found in favour of ARB’s handwriting expert evidence that the signature on the relevant consent form was forged and that ARB would not have consented to having another child. Further, the Court found the Defendant in accepting the forged signature had breached an express term of their contract with the Claimant, which included an obligation not to thaw and replace an embryo if the Claimant did not give his written consent. A forged consent was a non-existent consent. The Defendant alleged the Claimant had breached the agreement by failing to inform them that he and R had separated. However there was no pleaded claim or proof of actual causation arising from this.
The Court did not find that the Defendant was in breach of its implied obligations under the Human Fertilisation and Embryology Act 1990 to take reasonable care in obtaining consent, as the Defendant had not been negligent when it checked the signature on the Consent to Thaw form against the Defendant’s records.
Notwithstanding the Court finding that the Defendant was in breach of contract to the Claimant in thawing and replacing embryos without his valid consent, the Claim failed on legal policy objections.
The Court found that the same legal policy grounds referred to in Rees v Darlington Memorial Hospital NHS Trust were applicable in the present case. This included the unwillingness to regard the child as a financial liability; the refusal to offset the benefits which will accrue from parenthood from any additional financial liabilities; the feeling that it is morally unacceptable to attempt this exercise; and that it would not be fair just and reasonable to allow a claim of this nature.
However the Court noted that the claims ARB were seeking were not conventional awards and that Court would be obliged to consider a claim based on his amended pleadings to seek to recover conventional heads of damage. The decision was made in October 2017 and we shall wait to see if there are any developments to this case.