IVF breach of contract wrongful birth claim: UK

ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) was brought by ARB (the father) as a breach of contract claim against the IVF clinic, in circumstances where he asserted that the clinic brought about a pregnancy for his former partner (the mother) acting on a consent to thaw embryos form, which he had not signed. The IVF clinic in turn brought a claim for indemnity against the mother.

The court held at [209] that the father ARB did not sign the consent to thaw form; rather his signature was forged by the mother.

Discussion of whether a warranty / strict liability existed included reference at [254] to Thake v Maurice [1986] 1 QB 644, where a surgeon carried out a vasectomy having stated that it was irreversible. Then at [260] – [262] the court concluded that the clinic owed an express obligation (which was strict) not to thaw and replace an embryo if he did not give his written consent.

The court was therefore required to address the father’s claim for damages, which was for past and future financial losses being the costs of raising the child. That required consideration of the application in a claim for breach of contract of the prior English authority regarding claims in negligence. At [317] – [318]:

The crux of the matter remains whether the legal policy enunciated by the House of Lords in Rees, and undoubtedly applicable to contractual claims founded on reasonable care obligations in the light of the principle of relevant equivalence or congruence which I have identified, should – for reasons of principle, logic and policy – apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach. This last aspect is crucial because the current focus is on the secondary obligation to pay damages arising under the common law.

In my judgment, the same legal policy applies to thwart ARB’s claim. The measure of damages is the same; the test for remoteness does not turn on any distinction pertaining to the nature of the underlying obligation; and, most particularly, there is no material difference for the purposes of this legal policy between contractual duties of these two types…

The trial judge commented at [342] that although he has lost this case, the judgment “must be seen as a complete personal and moral vindication for ARB. The same, of course, cannot be said for R”.