IVF conception with incorrect sperm: Loss of genetic affinity

The blog Singapore Law Watch  reports today’s decision of the Singapore Court of Appeal, ACB v Thomson Medical Pte Limited & Ors [2017] SGCA 20 in which the Court at [3] summarised the wrongful birth compensation dispute in this way:

The Appellant and her husband sought to conceive a child through invitro fertilisation (“IVF”). The Appellant underwent IVF treatment and delivered a daughter, whom we shall refer to as “Baby P”. After the birth of Baby P, it was discovered that a terrible mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown third party instead of sperm from the Appellant’s husband. The Appellant sued the Respondents in the tort of negligence and for breach for contract and sought damages for, among other things, the expenses she would incur in raising Baby P (“upkeep costs”). The Respondents conceded liability but argued that the Appellant should not be allowed to recover upkeep costs. They argued that the child is a blessing, and that there was something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation.

At [210] the Court of Appeal dismissed the the appeal in so far as the issue of upkeep costs is concerned. However, the Court recognised a right to claim, as general damages, a sum in recompense of the injury which she has suffered to her interest in “genetic affinity”. The quantum of this award should be assessed in accordance with  principles set out at [145]–[152], which focused on a percentage of the actual costs of raising the child (30%).

The Court held that while a claim for punitive damages may in principle be mounted in respect of claims in negligence, such an award was not available in this case.

See also the discussion of this decision by G Owen Schaefer in The Conversation.

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