A couple underwent successful fertility treatment at an IVF clinic and froze five embryos, with both their gametes, after the birth of their first child. The couple later separated and the mother returned to the clinic to inform staff that they both wanted a child. The clinic required both partners to sign the consent but, if one partner was present, the other was permitted to take it and return it signed by both couples at the first scan appointment. The mother forged the signature and despite the signatures being checked, the forgery was not detected and an embryo transfer tool place which resulted in a second child, E.  The Claimant father who had now separated from R, E’s mother and met and married a new partner, claimed substantial damages on the ground that the embryo had been transferred without his informed written consent and that as a result he was the father of an ‘unwanted’ child for whom he said he had a moral obligation to pay her past and future financial upkeep for periods when she was living or staying with him. The claim included the cost of private school fees, bedroom decoration, a larger (seven seater car), babysitting, ski-ing holidays, gap year funding, a new car at 18, and the future costs of her wedding.

At first instance, the judge ruled that the clinic was in breach of an express obligation to obtain informed consent which was strict. He dismissed the alternative claim in negligence saying that the clinic’s systems were Bolam reasonable. He held that no damages were recoverable in contract because of the legal policy set out in McFarlane v Tayside Health Board [2000] 2 A.C. 59 and Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 which prevents damages being recovered for the costs of bringing up a healthy child in tortious claims following a wrongful conception.

On appeal Court of Appeal held that the clinic was in breach of a reasonable care duty as well as the strict express term in the contract but regardless of which cause of action applied, agreed with the Judge below that damages were irrecoverable on grounds of legal policy.

Jeremy Hyam QC and Suzanne Lambert were instructed by James Lawford-Davies of Hempsons for IVF Hammersmith. Read more below and get the judgement here: ARB (Appellant) v IVF HAMMERSMITH (Respondent) & R (Third Party) (2018).