Modern technology can throw up all sorts of new conundrums for the law to grapple with. IVF treatment, for example, has raised the possibility of a child being conceived without the permission of either one of its natural parents. We have seen cases of this before, such as where a widow has sought to use her dead husband’s frozen sperm to conceive a child, or even where a woman has wanted to use her late daughter’s frozen eggs to give birth to her own grandchild.
But what if the child is conceived as a result of a deception? What if a mother conceived a child via IVF after deceiving the IVF clinic into believing that the father consented, when she knew he did not? Would the father then be liable for the costs of the child’s upbringing?
This was the situation in the recent Court of Appeal case ARB v IVF Hammersmith & Another.
The facts of the case were as follows. In 2008 the parents, who were in a relationship, attended an IVF clinic for the purpose of investigating and subsequently undergoing fertility treatment. As part of that treatment a number of embryos were created using the mother’s eggs and the father’s sperm. One of those embryos was implanted into the mother, and she subsequently gave birth to a healthy boy, in the autumn of 2008. Five other embryos were frozen, with the parents’ consent, to await the possibility that they would decide to undergo further treatment.
However, following the birth of the son the parents’ relationship deteriorated, and they separated in July 2010.
Despite this, the mother attended the clinic again in 2010, with a view to using one of the frozen embryos to have another child. In the course of this process a consent form was required to be signed by both parents, confirming that they consented to the procedure. The form was completed by the mother in October 2010. However, the father did not consent – his signature on the form had been forged by the mother.
The procedure went ahead and the mother gave birth to another child, a daughter, in 2011. Family court proceedings took place in relation to the children, and an order was made “confirming parental responsibility and shared residence in respect of both children.”
The father issued proceedings against the clinic for breach of contract, seeking damages for the cost of the daughter’s upbringing. As neither breach of contract nor the law of tort, which was also referred to in the case, is a family law matter, I will not go into the details. Suffice to say that the High Court found that the clinic had committed a breach of contract by thawing and implanting the embryo. However, the judge held that the father could not recover damages for the cost of the daughter’s upbringing, for reasons of legal policy.
The father appealed, to the Court of Appeal.
The primary question for the Court of Appeal to answer was whether the legal policy objection to the father recovering damages for the cost of the child’s upbringing applied. The reasoning behind the policy is essentially twofold: firstly, that it is inherently impossible to quantify how much it costs to bring up a child, and secondly that it is morally unacceptable to regard a child as a financial liability.
Giving the leading judgment of the Court of Appeal, Lady Justice Nicola Davies DBE found that the legal policy did apply. Again, I will not go into the legal details, but those two essential reasons behind the policy were applicable here: that it was not possible to calculate the father’s loss for breach of contract, and that it was morally unacceptable to regard a child as a financial liability. In any event, as Lady Davies said, the father had accepted his share of responsibility for his daughter’s upbringing, and wished to treat her in the same way as his other children.
Having found that the policy did apply, Lady Davies dismissed the appeal. Lord Justice David Richards and Lady Justice King DBE gave concurring judgments.
If you wish you can read the full report of the case here.