The England Appeal Court has held that a father’s claim against a clinic for breach of contract for damages suffered as a result of raising his child who was born by IVF to his estranged wife without his consent were not recoverable due to legal policy.

The child was conceived via IVF using the gametes of the father and mother who had stored their embryos at the clinic for their future use. The father instituted action against the clinic on the grounds that the mother had forged his signature on the consent forms resulting in the clinic staff implanting a frozen egg that had been fertilised by his sperm into the mother from whom he had separated. He claimed that the procedure was carried out without his written informed consent.

The court considered various factors, including whether there had been fraudulent misrepresentation of the father’s signature, the contract entered into between the parties and the father’s failure to inform the clinic of the changes in his relationship with the mother which might have resulted in him being contributorily negligent. The court also took into consideration public and legal policy issues surrounding the father’s claim.

It was held that the clinic was subject to strict liability and that it had breached its obligations towards the father by performing a procedure without obtaining his written informed consent. However, the father’s appeal against the court’s decision for damages resulting from the birth of the child without his consent failed even though the court was satisfied that he had no intention of procreating with the mother of the child.

The court referred to previous UK judgments concerning wrongful birth claims where it was held that legal policies concerning delictual claims founded on reasonable care obligations should apply similarly to contractual claims that are based on strict liability and rejected the claim.

The court applied the same principles concerning legal policy which exemplify the difficulty involved in attempting to measure the loss suffered, the unwillingness on the part of the parent to regard the child as a financial liability, the refusal to offset the benefits derived from parenthood from the financial liability obligation of a parent, and the moral and ethical considerations associated with allowing such a claim.

The judgment is a stark reminder to healthcare professionals and establishments to ensure that the identity of the patient is confirmed and that informed consent of the patient is obtained in writing prior to any procedure being undertaken. Healthcare professionals and establishments should also ensure that terms and conditions of admission to a healthcare establishment or for the rendering of services exclude any liability arising due to dishonesty of a patient.

South African courts have been more accommodating of wrongful birth claims than the English courts.

The case is ARB v IVF Hammersmith and R.