Hughes Paddison involved in high profile IVF case

Hughes Paddison’s Head of Litigation, Rachel Stewart, represents the claimant in a much publicised High Court case in which a father is suing 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 child. 

The background to this highly unusual case stretches back some years. In 2008, the man and woman attended the Hammersmith IVF Clinic to undergo private fertility treatment. This resulted in pregnancy and the birth of a healthy boy. However, the woman suffered long term injuries as a result of the birth. (She subsequently sued the hospital for compensation, following allegations by her of negligent mishandling of the delivery.)

As part of the IVF treatment in 2008, a number of embryos were frozen, in case the couple decided to undergo further treatment. Storage of frozen embryos can only be done lawfully if both the man and the woman give their written consent. In this case, the couple gave their consent by signing a contract on 24th June 2008. The first clause of that contract stated that both parties had to provide informed, written consent before any embryos could be thawed and implanted in the woman.

Following the birth of their son, the couple’s relationship deteriorated significantly. Giving evidence in court this month, the man described it as “volatile and rancorous”, and the woman as “dysfunctional and unhealthy”. Nevertheless, at 39 years of age, the woman was anxious to investigate whether she was physically able to have another child – a fact which was in question due to the injuries she had suffered during the delivery of their son.

Given the very unhappy state of their relationship, the man did not want another child with the woman. However, to avoid further confrontation, and in an effort to be supportive of the woman, he once again attended the IVF clinic with her in March 2010. Further investigations of the woman’s condition were recommended, to see if she was capable of carrying another child to term. A review appointment was arranged. At no point did the clinic obtain the man’s consent to the thawing and replacement of another embryo, and the man never attended the clinic again. 

Later that year the relationship broke down for good, and the woman moved back to her own home.  The couple remained in touch, as the man was having regular contact with his son, but the relationship was extremely sour. 

In November 2010 the man met his now wife. When the woman discovered that he was in a new relationship, she did not react well. 

On Valentine’s Day 2011 the man received a text from the woman, stating “By the way I’m pregnant. Baby due early July”.  Unclear what had happened, and not knowing if he was the father, the man investigated. He faced significant obstruction and hostility from the woman, and little less cooperation from the clinic. However eventually, he found out that late in 2010 the woman had taken a consent form to the clinic, which she stated was signed by the man, which authorised the thawing and implantation of one of the frozen embryos created in 2008. The man informed the clinic that the signature on the form was a forgery. The clinic had not seen him in person since 2008, had not telephoned him or emailed him, but had relied on the form as evidence that he was consenting to having another child.  They maintained that in doing so, they had done nothing wrong.  

A healthy girl was born in July 2011. The court ordered that a DNA test be carried out, which confirmed that she was the man’s daughter. As a result, the man sought legal advice, and this claim was commenced. The first day of the trial coincided with the daughter’s 6th birthday.  

One of the key factual issues in the trial is whether the signature on the consent form is a forgery. The clinic appointed a handwriting expert, Dr Giles, who last week gave evidence in court. She is the former Head of the Questioned Documents Section of the Metropolitan Police Forensic Science Laboratory (Scotland Yard). She has concluded that there is clear evidence of pencil tracing beneath the ink signature, as well as unusual pauses and interruptions in the signature. She told the court she is 99% certain the signature was forged.
Notwithstanding this, the woman maintains that the signature was willingly provided by the man and that it is genuine. The judge must therefore decide whether, on the balance of probabilities, it is the man’s signature or not. If he decides it is not, then he must go on to consider the legal issues that flow from the fact the man has a child that he did not willingly conceive, as a result of treatment provided by the clinic to the woman, in his absence.

The trial is the first of its kind, as it seeks to establish a claim for ‘wrongful birth’ in respect of a healthy child, and as a result of a breach of contract. Current UK law states that as a matter of public policy a person cannot claim damages for a healthy child, if born as a result of medical negligence, because a healthy child is legally considered to be a ‘blessing’. So for example, if a vasectomy fails as a result of medical negligence, and a healthy child is born, the father cannot claim for the cost of raising that child. (The situation is different is the child is unhealthy, when damages can be claimed for the cost of care.)

In the current case we are arguing that the situation is different when instead of medical negligence, the birth was due to a breach of a commercial contract – in this case a contract for the provision of private IVF treatment. We are also challenging the assertion that a healthy child must be considered a ‘blessing’. 

The trial is being presided over by Mr Justice Jay, who was counsel in the Leveson Inquiry into the phone hacking scandal. He is hearing the case in the Royal Courts of Justice on Fleet Street. 

The case is at the half way point in the trial, which is listed to run for the rest of this month. Judgment is not expected until October, after lengthy deliberations by the judge.