You’ve got the wrong skin colour: IVF stuff-ups and tort liability for loss of genetic affinity

Most of us know Singapore for its excellent airport, excellent food and other diversions.  But a recent decision of Singapore’s Court of Appeal, ACB v Thomson Medical, deserves attention.

The case is noted here.

In this case, a mistake was made in the process of an in vitro-fertilisation procedure involving a Singaporean Chinese woman and her German Caucasian husband.

Mistakenly, the wife’s egg was inseminated with sperm from an unknown Indian donor.

Baby P was born healthy, but with a different skin tone.

The claimant’s affidavit states that the pain and suffering that she suffered as a result, physically, mentally and emotionally, was “beyond words” and was “agonizing” [131].

In Australia and New Zealand, in 2014, nearly 34,000 women underwent nearly 68,000 cycles of assisted reproductive technology (ART), resulting in the birth of 12,875 babies.

With so many ART procedures taking place, it’s inevitable that Australian courts will see claims for loss of genetic affinity as well.

 

Wrongful conception, wrongful birth and loss of genetic affinity claims

Loss of genetic affinity cases are a bit different to the usual claims for wrongful conception and wrongful birth.

In wrongful conception cases, such as negligent sterilisation cases, the breach of duty of care results in the claimant falling pregnant in circumstances when they were seeking professional services in order to avoid doing so.

In other kinds of wrongful birth cases, however, the opposite is the case.  The claimant may have been trying to have a child, but due to the defendant’s breach, the child is born with disabilities in circumstances where, if due care had been shown, the claimant might have had an abortion, or might have avoided having a disabled child because a different IVF embryo would have been implanted.

These are just examples, of course, rather than an exhaustive explanation of wrongful birth claims.

In ACB v Thomson Medical, the claimant claimed the expenses she would incur in raising Baby P, a baby who, by virtue of the lack of genetic affinity with the legal father, would not have been born at all if due care had been shown.

 

Cattanach in the High Court of Australia

In Australia, in the High Court case of Cattanach v Melchior, a majority of the High Court allowed a claim for the costs of bringing the child up, at least until the age of 18 years.

Cattanach was a case where the provider mistakenly failed to investigate and simply accepted the patient’s assurance that her right fallopian tube had been removed when in reality it was still there.

The woman gave birth to a healthy child as a result of the transmigration of an egg from her left ovary to her right fallopian tube.

Following Cattanach, 3 state Parliaments moved swiftly to exclude the costs of upkeep.  In NSW, following amendments to the Civil Liability Act, only the additional costs that arise in caring for a disabled child (who would not have been born at all, but for the defendant’s negligence) can be claimed.

The judgments in Cattanach reflect fundamental disagreements about the nature of the damage suffered by the plaintiffs.

In a negligence claim, proof of damage is an essential element of the claim: it’s not enough merely to show the defendant breached their duty of care.

Justice Gleeson saw the claim for costs of raising and maintaining the child as a claim for a novel form of pure economic loss arising because a parent-child relationship had come into existence [26]-[27].

He didn’t regard the claim as being for economic loss that was consequential upon personal injury (that is, a personal injury taking the form of an unwanted pregnancy), because Mr Cattanach was also a plaintiff.

Overlooking the unwanted physical burden of pregnancy on Mrs Cattanach, and framing the entire claim in terms of pure economic loss, seems remarkable to me, but the deeper point for Justice Gleeson was that he thought Mrs Cattanach’s claim implied that the creation of the parent-child relationship was itself actionable damage.

Whereas in His Honour’s view, that relationship is not primarily financial in nature and is fundamental to society, and assigning an economic value to it is not possible [38].

The majority judges saw things differently.  Justices McHugh and Gummow stated that it was not the relationship or the child that was the damage, but the “burden of the legal and moral responsibilities which arise by reason of the birth of the child” [68].

Their Honours did not accept that the values of respect for human life, the stability of the family unit and the nurture of infant children required courts in Australia to reject a claim for costs of upkeep in circumstances where the child would never have been born but for the defendant’s negligence [76].

 

ACB v Thomson Medical in the Singapore Court of Appeal

The Singaporean case of ACB v Thomson Medical was a bit different, of course, to the High Court case of Cattanach.

Unlike Cattanach, in ACB the claimant was actively trying to conceive.  She wanted a mixed Chinese-German child.  What she got was a mixed German-Indian child.

It had the wrong skin colour.

Singapore is a pretty interesting jurisdiction to run the argument that the lack of genetic affinity, and the differences in physical appearance that followed from this, should be regarded in the eyes of the law as actionable damage or “harm”.

One thing that must be said about the judgment of the Singaporean Court of Appeal is that it is extremely thoughtful and a wonderful example of the judicial craft.

The justices systematically and carefully reviewed caselaw across many jurisdictions – it’s a magnificent case for health lawyers to read in order to come up to speed with wrongful birth claims in common law jurisdictions.

The justices were also honest when it came to making the value choices that they were inevitably required to make.

Ultimately, the court rejected the claim for costs of upkeep for Baby P for the reason that “the duty to maintain one’s child is a duty which lies at the very heart of parenthood, and thus the expenses which are incurred towards the discharge of this estate are not capable of characterisation as a loss” [90].

The court regarded the creation of the parental relationship that arose from Baby P’s birth as giving rise to both financial and non-financial obligations.  The court saw no reason why the financial consequences; that is, the cost of upkeep should be compensable, when the non-pecuniary costs were not [92].  In a poignant passage, their Honours included in these non-pecuniary costs “the hours of lost sleep spent putting [Baby P] to bed; the sorrow and worry endured during a bout of illness; or the simple act of blowing on a spoonful of hot soup before feeding it to her” [91].

If the court were to award damages at all, even for the quantifiable costs of upkeep, it would necessarily mean acknowledging, as actionable damage, aspects of a relationship which is “regarded as socially foundational” [101].

While this as a principled position that a court might reasonably take, I would personally give greater weight to the consequences of such reasoning.  The consequences are to create a zone of immunity where IVF providers don’t have to be answerable for careless conduct.

Denying the costs of upkeep in wrongful birth claims may also exacerbate the economic harm the claimant suffers, especially in circumstances when the claimant was seeking to avoid pregnancy.

 

Loss of genetic affinity

In the second part of its judgment, the Singaporean Court of Appeal went on to explain that the true basis of the claimant’s complaint was the disruption, by negligence, of her desire for a shared genetic link between herself, her husband, and her child [128].

The court concluded that “damage to the [claimant’s] interest in ‘affinity’ is a cognisable injury that should sound in damages” [135].

The court ultimately decided that appropriate compensation would be to award the claimant 30% of the financial costs of raising Baby P, not as costs of upkeep, but as recognition of the interference with her interest in genetic affinity with her child.

Which leads me to say: if it is the social importance, fundamental character or moral integrity of the parental-child relationship that is the basis for denying a claim for costs of upkeep, was it not somewhat odd for the court to nevertheless accept that the absence of a genetic link between the claimant and her child qualified as actionable damage?

Personally, what I find heartening, in fact inspiring, is the way that people can – and do – create families through the sheer force of their love and commitment to each other, irrespective of skin colour or genetic affinity.

We see this with adoption and same-sex families, not to mention second marriages.

These family units are here to stay, and deserve the same measure of protection as families where the heterosexual parents share genetic links.

If awarding damages for the coming-into-existence of an unwanted parent/child relationship is offensive in terms of principle, is it not equally offensive to award damages because the (innocent) child who is the subject of the parental relationship lacks genetic affinity with one of its parents?

 

Appraisal of the decision

The Singaporean Court of Appeal acknowledged that the loss suffered by the claimant was partly the result of a complex mix of biological and social factors, including racial attitudes that might not be praise-worthy.

However, I am puzzled why – if the court was persuaded to take a principled line on the fundamental importance of the family unit by denying a claim for the costs of upkeep – why it didn’t follow that principle through and also reject the claim for damages for loss of genetic affinity.

Families are more than the shared genes between children and their parents.

The “anguish, stigma, disconcertment, and embarrassment suffered by the claimant” [150] in response to the curiosity of others about Baby P’s skin colour might actually be based upon reactions that weaken the family unit, rather than strengthen it.

In summary, I agree with the decision the court reached, but I have reservations about its reasons.

Personally I do not see a claim for costs of upkeep as signalling a disrespect for the value of the family unit, at least when the alternative is to create a zone of immunity within which IVF providers are shielded from the consequences of careless conduct.

If we value families, we need to respect the conditions under which people choose to go into parenthood, especially when they seek to avoid parenthood altogether, and also when they enter IVF arrangements in order to ensure a genetic link with their children.

In recognising an action for loss of genetic affinity, and providing a novel resolution to a claim for wrongful birth,  the Singaporean Court of Appeal was taking a pragmatic path that enabled it both to underscore the fundamental importance of the family unit, while still providing a remedy for the consequences of carelessness in the provision of IVF.

Health law at Sydney Law School

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