Costs of ‘unwanted’ child not recoverable for public policy considerations

Thu, 10 Jan 2019

In ARB v IVF Hammersmith and Another [2018] Civ 2803, the Court of Appeal considered ARB’s claim for pecuniary losses arising from the birth of his child. 

By way of background, ARB and his then partner (R) had IVF treatment at the Defendant clinic, leading to embryos being frozen.  An embryo was used to give the parents their son.  There was thereafter a breakdown of their relationship and R moved out of the family home.  The Court found that unknown to ARB, R went on to dishonestly forge his signature on a form indicating his consent to thawing some of the embryos.  The clinic was not aware of the forgery and implanted an embryo leading to the eventual birth of ARB and R’s daughter. 

ARB sought damages for breach of contract relating to the past and future pecuniary losses related to bringing up his daughter.  The Court at first instance followed McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, ruling that damages could not be recovered for the birth of a healthy child.  ARB then appealed this decision and argued that the public policy principle in McFarlane and Rees applied to tort claims and, as such, he should not have been denied damages for breach of contract.  

The appeal was not allowed.  The Court of Appeal upheld the decision of the lower court on all material points: obligations as to informed consent, the application of the common law, and the effect of public policy.

The Court held that the clinic was in breach of its duty to obtain informed consent from both parties in order to thaw an embryo.  The contract also imposed a straightforward and strict obligation not to thaw an embryo without the written consent of both ARB and R to give effect to its statutory obligations in the Human Fertilisation and Embryology Act 1990.   The Court noted that the Act emphasised the fundamental importance of informed consent, and that there was a particular risk of fraud in this area of medicine where individuals are desperate for conception.  It was all the more important, then, that there was documented proof of written consent. 

The cases of McFarlane and Rees were applicable notwithstanding that this claim was contractual in nature.  The contract did not contain a liquidated damages clause, meaning that damages were to be paid as secondary obligation arising by implication of the common law.  It was noted that the common law includes legal policy like that enshrined in the previous decisions relating to healthy children.  It was of no consequence that ARB was claiming in contract rather than tort, or that he had paid for the services of the clinic as opposed to receiving treatment from the NHS.  There was therefore no reason to distinguish between contractual and tort cases, and existing common law principles applied equally.

Finally, even though this child was, in ARB’s words, ‘unwanted’, the cost of bringing up a healthy child is not recoverable following Rees and McFarlane.  The legal policy for not permitting such recovery is that the loss is impossible to determine, given the various benefits and burdens of bringing up a healthy child.  The task did not become possible for a loss from breach of contract, just as it is not possible in tort.  There was also the sense that it is morally unacceptable to regard a child as a financial liability. 

This case has clear implications for healthcare providers, in that the Court expects a robust mechanism for ensuring that informed consent is received and that there are checks and balances in place to ensure that fraudulent activity is curtailed.  From a legal perspective, if ARB proceeds with the case to the Supreme Court, there is the possibility that the decision in Rees may be overturned.

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