Mark McDonald in the Court of Appeal in Wrongful Birth Case

Author: Reporter
In: News Published: Friday 01 February 2019

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The case, ARB v IVF Hammersmith [2018] EWCA Civ 2803, was before King LJ, David Richards LJ, Nicola Davies LJ, and involved a father appealing against the dismissal of his claim for damages for breach of contract against an IVF Clinic, for wrongful birth of a healthy child.

The father and mother had undergone fertility treatment together at a private IVF Clinic, and had had a child together. Five embryos, made from the mother and father's gametes, were then frozen. The parties signed a contract with the IVF clinic, that they must both consent before any embryos were to be thawed and replaced.  Later, the parties separated. The mother then attended the IVF Clinic and obtained the relevant consent form for thawing and replacing, and away from the IVF Clinic forged the father's signature. Acting on the consent form, embryos were replaced and the mother gave birth to a health daughter. 

The father claimed against the IVF Clinic for breach of contract. Before Jay J and the Court of Appeal, the claim failed. In tort cases, it had been accepted that damages were not recoverable for the cost of bringing up a healthy child. The basis was a core legal policy preventing recovery of loss, namely the impossibility of calculating the loss, given the benefits and burdens of bringing up a health child. If it was impossible for a court to calculate the value to be attributed to the benefit of a child, so as to set off such value against the financial cost of the child's upbringing as a matter of legal policy, it was hard to see how the task was possible if the loss resulted from a breach of contract. The Court of Appeal also held, in addition, that it was morally unacceptable to regard a child as a financial liability. This was the common law position and there was nothing in the IVF Clinic contract to modify that, for instance, by way of a liquidated damages clause.  

33 Bedford Row barrister Mark McDonald appeared for the mother before Jay J and in the Court of Appeal. In the Court of Appeal, Mark was lead by Michael Powers QC. Mark was instructed by Axiom Stone Solicitors. 

The Judgments are available, High Court (Jay J) and the Court of Appeal