The UK Court of Appeal has refused damages for the birth of a healthy child where born by IVF without the consent of the father.
The case involved a father whose gametes were implanted in his former partner by an IVF clinic without his consent. The couple had previously had a son through IVF, and the clinic had frozen a number of embryos as was standard practice. The couple separated, however the mother subsequently had a daughter via the frozen embryos by forging the father’s signature.
The father therefore sought damages relating to the financial burden of the child’s upbringing in both the past and future incurred as a result of the clinic’s breach of contract. The High Court had previously determined that there had been a breach of contract however, following McFarlane v Tayside Health Board and Rees v Darlington Memorial Hospital NHS Trust, failed to award such damages for the birth of a healthy child.
The father was granted permission to take the appeal on the point of damages as it was argued that McFarlane only applied to tort. The appeal, however, was refused as it was held that legal policy applies equally to contractual claims.
The Court accepted the cost of bringing up a child was directly caused by the breach of contract by the IVF clinic, however it remained impossible to calculate the loss given the benefits and burdens of bringing up a healthy child. This remained the case whether the loss arose in tort or contract. The contract with the clinic itself was without a liquidated damages clause therefore the damages fell to common law, which incorporates legal policy as determined by McFarlane.
The Court also was of the view that it was morally unacceptable to regard a child as a financial liability.
Click here for the decision in ARB v IVF Hammersmith.