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| 22 January 2019

Claiming for a child mistakenly conceived?

In the recent case of ARB v IVF Hammersmith (1) and R (2) [2018] EWCA Civ 2803 the Court of Appeal heard a claim from a father (ARB) for breach of contract against the respondent IVF clinic.

ARB and his partner (R) had been undergoing IVF treatment at the clinic, but had separated during the procedure and before the embryo had been thawed and implanted. Subsequently, and after provision to the clinic of a consent form signed by both parents, which the Judge later found had been forged; the IVF clinic thawed and implanted an embryo into R. ARB thereafter sought damages for monetary losses relating to the resulting child (“E”)’s past and future upbringing which were incurred as a result of the IVF clinic’s breach of contract.

ARB succeeded in proving that a breach of contract had occurred. However, the judge held that he could not recover damages for the costs of raising E for policy reasons. The judge considered the cases of McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, determining that:

  1. It would be difficult, if not impossible, to measure the loss(es) sustained;
  2. it is morally unacceptable to attempt to claim damages in respect of a child; and
  3. that there is a notion that it is not fair, just and reasonable to allow this sort of claim.

ARB appealed to the Court of Appeal in respect of the claim being policy-barred and the judge allowed his appeal in part, in that: the judge had wrongly found the claim to be barred on grounds of legal policy because the legal policy developed in cases of tort resulting from wrongful conception or birth, which prevented recovery of loss arising from the birth of a healthy child, did not apply in cases of contract. A breach of contract and a breach of duty had therefore occurred. However, the Judge did not overturn the determination on damages, and upheld the settled reasoning, that it is morally unacceptable to attempt to claim damages in respect of a child.

By applying settled law (the cases mentioned above), ARB’s claim failed and he was unable to claim damages relating to E’s upbringing, even though there had been a breach. As such, the policy-bar in these types of claims concerning accidental conception and pregnancy remains intact.

If you have a query relating to breach of contract, please do not hesitate to contact our experienced and dedicated Litigation Team to discuss your matter.

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