In November 2018, we posted “Wrongful births”, statistics and the law, in which we looked at compensation claims in a number of cases in which the parents of a congenitally-diseased child had argued that their doctor had failed to warn them of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities and claimed damages for the cost of raising an unexpectedly disabled child.
A rather different issue has been the subject of a more recent judgment by the Court of Appeal: in ARB v IVF Hammersmith & Anor  EWCA Civ 2803 the IVF clinic had implanted an embryo into the appellant father’s former wife without his consent and he sued for breach of contract. ARB (the father) and R (at the time, his wife) had had fertility treatment at the clinic some years previously and had had a son – and, in the course of their IVF treatment, the clinic had frozen five embryos from their gametes. The couple subsequently split up – but R decided that she wanted another child.
In October 2010, R signed the necessary form to authorise thawing and implanting the embryo – and she did so on an updated consent form that had been pre-signed by ARB before the couple separated. At first instance, Jay J found that R had forged ARB’s signature on the Consent to Thaw form . The clinic failed to spot the forgery, thawed and implanted the embryo, and R duly gave birth to a daughter, E. There was a Family Court order confirming parental responsibility and shared residence in respect of both children . Jay J held that ARB succeeded on all aspects of his primary case against the clinic for breach of contract – but he also held that ARB could not recover damages for the cost of E’s upbringing, for reasons of policy .
Before the Court of Appeal, the appellant’s primary submission was that Jay J had been wrong to find that the claim to be barred on grounds of legal policy as enunciated by the House of Lords in McFarlane v Tayside Health Board  2 AC 59 (about the birth of a healthy child after negligent advice about the effect of a vasectomy) and Rees v Darlington Memorial Hospital NHS Trust  1 AC 309 (in which a healthy child had been born following a negligently-performed sterilisation) . Three points were made :
- The IVF clinic had been found by Jay J to have committed a breach of contract by thawing and implanting the embryos – and the legal policy developed in cases of tort resulting from wrongful conception/birth preventing recovery of loss arising from the birth of a healthy child did not apply in cases of contract. It was not for the court to take any account of any benefit arising from the birth and upbringing of the child but simply to apply the rule in Hadley v Baxendale (1854) 9 Exch 341 (which limits the liability for damages in breach of contract to those damages that can reasonably be anticipated to flow from the breach to the financial loss resulting from the breach).
- The court must look to the nature of the contract and the breach. The breach could only arise where a woman wished to have a child and her male partner did not. The resulting loss – the birth of a child – would satisfy both limbs of Hadley v Baxendale.
- As a general rule of contract, if a particular type of loss fell within either limb of Hadley v Baxendale and a claimant regarded the birth as a loss and not as something that brought any benefit, s/he was entitled to claim for such a loss.
The respondent’s contention was that Jay J had correctly recognised that the question to be addressed was whether the legal policy bar in McFarlane and Rees applied to a contractual claim founded on a strict obligation and that
“He correctly held that in this case, whether the claim is in tort or contract, the measure of damages is the same; the test for remoteness does not turn on any distinction pertaining to the nature of the underlying obligation and there is no material difference for the purposes of this legal policy between contractual claims founded on reasonable care obligations and on strict obligations. In summary, there was relevant equivalence or congruence of outcome with a hypothetical claim in tort” .
At first instance, Jay J had held that the same legal policy that applied to actions in tort applied equally to actions in contract and therefore defeated ARB’s claim, as follows:
“317. The crux of the matter remains whether the legal policy enunciated by the House of Lords in Rees, and undoubtedly applicable to contractual claims founded on reasonable care obligations in the light of the principle of relevant equivalence or congruence which I have identified, should – for reasons of principle, logic and policy – apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach. This last aspect is crucial because the current focus is on the secondary obligation to pay damages arising under the common law.
318. In my judgment, the same legal policy applies to thwart ARB’s claim. The measure of damages is the same; the test for remoteness does not turn on any distinction pertaining to the nature of the underlying obligation; and, most particularly, there is no material difference for the purposes of this legal policy between contractual duties of these two types…”
The Court of Appeal agreed:
“33. In this case it is not disputed that the loss claimed, namely the costs of the upbringing of E, would be in the reasonable contemplation of the parties in the event of a breach of the contract. At the core of the legal policy which prevented recoverability of the identified loss in Rees and McFarlane was the impossibility of calculating the same loss given the benefits and burdens of bringing up a healthy child. If it is 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 in tort, how is the task possible for a court if such loss results from a breach of contract? Added to this is the sense, reflected in the judgments in Rees and McFarlane, that it is morally unacceptable to regard a child as a financial liability” [emphasis added].
It was also of note that Lord Scott had stated in Rees that, as to the general principle of damages (which require a claimant to be placed in the position he or she would have been in had the baby not been born) recovery did not depend upon whether a claim was a contractual or a tortious one .
- Rosalind English, UK Human Rights Blog: Damages for wrongful life refused.
- Rebecca Livesey, No 5 Barristers’ Chambers Blog: Costs of ‘unwanted’ child not recoverable for public policy considerations.