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IVF Hammersmith and wrongful birth claims

Posted on 9th October 2017

The Guardian last week featured the worrying story of how an IVF clinic, IVF Hammersmith was duped into enabling a woman to conceive a child by IVF after forging her ex partner’s signature.

The mother apparently produced a forged form, said to have been signed by her ex-partner, agreeing to proceed with IVF treatment.

She conceived a healthy daughter (now six years of age) and is now apparently seeking financial maintenance for her daughter.

The media reported that she wishes such support to include “a private education, nannies, skiing trips and a Land Rover Discovery used to transport the girl and her eight-year-old brother.” The maintenance costs will run into the hundreds of thousands of pounds for her childhood or at least until she finishes university.

The father sued IVF Hammersmith alleging that there were defects in their procedures for checking that he had consented for his sperm to be used in the IVF process. He had at no time agreed for the clinic to use his sperm for the IVF process. A handwriting expert confirmed that his signature on the forms was a forgery.

The father has won his case on ‘moral grounds’ and proved that his signature was forged but the court has ruled that the birth of healthy child cannot, for public policy grounds, lead to an award of damages.

The case law that the trial judge has relied upon is the House of Lords (now Supreme Court) ruling in McFarlane v Tayside Health Board (1999).

This 1999 case ruled that the parents of an unplanned but healthy child were not entitled to recover damages. This was because society took the view that a healthy child was ‘a blessing and not a burden’.

Since 1999 failed sterilisation cases and wrongful birth cases have only been awarded damages when the child has been born with a disability which will mean that the parents will have to invest extra time and resources into caring for their disabled child.

The ex-partner father has been granted leave to appeal. I think he has good grounds to do so. He is not alleging that he has been ‘burdened’ with caring for a healthy child. He is alleging that he has been burdened with the substantial child support payments that he must now make. This is a subtle but important distinction. This is one step removed from the case of McFarlane.

Also, should the clinic not be made to pay damages in order to reflect the gross failures of their procedures? This kind of victory would mean that clinics would then have to improve their consent process. It seems unfair that the clinic should not pay for their apparent failings.

It will be interesting to see if the appeal succeeds and if the case is then appealed to the Supreme Court.

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