Court of Appeal in IVF breach of contract claim

Hughes Paddison’s Head of Litigation, Rachel Stewart, represents the claimant (ARB) in a much publicised High Court case in which a father sued an IVF clinic for over £1 million, after a frozen embryo was thawed and implanted into his ex-girlfriend, without his knowledge or consent, leading to the birth of a healthy child.

In his judgment in September this year, Mr Justice Jay found that after ARB and his ex-girlfriend had acrimoniously separated, and ARB had met his now-wife, his ex-girlfriend forged ARB's signature on a 'consent to thaw' form, and attended a London IVF clinic to have the frozen embyro implanted. The clinic did so without informing ARB, and without taking any steps to confirm that he was aware of, and consented to, the treatment. The contract ARB had signed with the clinic expressly stated that both ARB and his ex-girlfriend "...must both give written consent before any embyros are thawed". 

The first ARB knew of the thawing and implantation was when, on Valentine's Day, he received a text message from his ex-girlfriend, telling him she was pregnant and that he was the father. 

ARB succeeded on all aspects of this primary case against the clinic. Jay J found the clinic was in breach of contract in failing to obtain ARB's written consent to the thawing of the embyro; that while the clinic was not negligent in failing to spot the forgery, the obligation to obtain ARB's consent was strict, akin to a warranty, and did not rely on establishing negligence; that the loss suffered was in the reasonable contemplation of the parties when they entered into the contract; accordingly, that the damages sought were not too remote. He concluded that his judgment must be seen as a complete personal and moral vindication of ARB, who had been unable to achieve any satisfaction in the matter from the police, local authority, the Family Court, or the Human Fertility and Embryology Authority (HFEA) (the regulator for IVF clinics), and hence felt he had no choice but to bring the matter before the court in the current case.

However, Jay J ruled against ARB on the issue of whether, as a matter of legal policy, compensation can be awarded for the birth of a healthy child. He relied on old House of Lords authorities McFarlane v Tayside Health Board [2000] and Rees v Darlington Memorial Hospital NHS Trust [2004], both of which were tortious clinical negligence cases, which held that as a matter of legal policy damages should not be recoverable when a healthy child has been born, as a healthy child is deemed to be a 'blessing'. Jay J referred to the 'convergence' or tort and contract in relying on these authorities, and held that ARB could not recover damages, and hence was the losing party overall.

The judgment raises many issues, legal and moral. Jay J gave ARB permission to appeal, commenting that the case - and the legal principle at stake - was suitable for consideration by the Supreme Court. He expressed his own disquiet at the result, after confirming that ARB has suffered a legal wrong.

The appeal process has commenced, with ARB's appeal being lodged at the Court of Appeal on Friday. He argues that his case, founded in contract, is to be distinguished from McFarlane and Rees for a number of reasons. Further, he challenges the concept that a child must be considered a blessing by its parents, even if one of the parents did not consent to its birth. He hopes that by pursuing the appeal, lessons will be learned and procedures improved, and that the HFEA will take greater responsibility for the robust regulation of a multi-million pound industry.

It is unlikely the appeal will be heard before late 2018 at the earliest.