On 17 July 2019, the Supreme Court refused to grant permission for ARB to appeal the 17 December 2018 decision of the Court of Appeal  EWCA Civ 2803. Jeremy Hyam QC and Suzanne Lambert acted for the respondent clinic, IVF Hammersmith Limited, and were instructed by James Lawford-Davies of Hill Dickinson.
The Panel, consisting of Lady Hale, Lord Hodge and Lord Kitchin, held that the application “did not raise a point of law which ought to be considered at this time”. As a consequence, it remains good law that the recovery of damages for the birth of a healthy but unwanted child is barred by legal policy, regardless of whether the claim is brought in contract or tort.
The background to the case concerns a couple who 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 form 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 took place which resulted in the birth of 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 grounds 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.
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