In Vitro Fertilisation and the Birth of a Legal Remedy

By Evans Ng

“It is a treasured value in humanity … that no parent would want her child to grow up thinking that she (the child was) a mistake.”- Justice Choo Han Teck

In 2010, a Chinese woman, trying to conceive a child with her Caucasian husband, underwent an in vitro fertilisation (“IVF”) procedure at a clinic. Like the previous time she bore a child through IVF at that clinic in 2006, no third party’s gametes were meant to be used. Again, a healthy child (“Baby P”) was born. But because Baby P’s skin tone differed from theirs, DNA testing was performed. The test showed that Baby P was conceived with the woman’s egg but a stranger’s sperm. The woman (the “Plaintiff”) was distraught and sued the clinic. The clinic conceded it had been negligent. It offered to compensate the Plaintiff for her pain and suffering caused by the mishap. But the Plaintiff insisted on being paid the cost of raising Baby P to adulthood (the “Upkeep Claim”) which the clinic refused.

The first instance judge rejected the Upkeep Claim. On top of various legal and policy reasons, the judge noted that “it is a treasured value in humanity … that no parent would want her child to grow up thinking that she (the child was) a mistake. Were the plaintiff to succeed in the Upkeep Claim … every cent expended in the upbringing of Baby P will remind her that it was money from a compensation for a mistake. Baby P should not ever have to grow up thinking that her very existence was a mistake.”

The Plaintiff appealed. The Court of Appeal agreed with the judge’s decision to reject the Upkeep Claim. This was mostly uncontroversial because Singapore’s Women’s Charter imposes a duty on a parent to financially maintain her child, and there was no dispute that the Plaintiff is Baby P’s mother. To order the clinic, an outsider, to bear this parental obligation would be inconsistent with the statute’s spirit, if not its letter.

The appellate court, however, found that the Plaintiff had suffered a type of actionable loss that had, until then, not been recognised in law—a loss of “genetic affinity”. This was a legal thunderclap – so unusual is it for a Singapore court to create a new head of loss, especially one that no other Commonwealth courts have broached.

The appellate judges reasoned that “persons who consciously choose to undergo IVF do so because of a deep desire to experience, as far as it is possible, the ordinary experience and incidents of parenthood.” Hence the clinic’s negligence caused the Plaintiff to suffer a loss of “affinity” and denied her “the chance to have a family structure which comports with her aspirations”.

According to the Court of Appeal, such a loss is “the result of a complex amalgam of biological, ethical, and historical factors”, some of which “have to do with certain aspects of human relationship and personhood that are fundamental parts of the human condition, such as the role of genetic relatedness, physical resemblance, race, culture, and the importance of familial relations”.

For inflicting this loss of genetic affinity on the Plaintiff, the clinic was ordered to pay her 30% of the costs of raising Baby P to adulthood.

To recognise a novel head of loss as legally actionable may cause uncertainty in the law of remedies, but this case is unlikely to have wider application to other fields of economic activity; it is difficult to envisage another type of fact situation involving the loss of genetic affinity.

But this case raises issues of public interest: What does it mean to share genetic affinity? How does this new judicial definition impact the nature of a parent-child relationship? These may be elaborated in future cases. For now there are three points which form the basis of the Court’s judgment that we may mull over.

First, the Court’s thinking that couples go through fertility procedures mainly because they wish to experience the ordinary incidents of parenthood, may not be universally shared. There are well-known instances of couples who undergo IVF in order to bear children for purely utilitarian reasons, such as to produce “saviour siblings” (who will act as a potential source of donor cells for an existing child with a life-threatening condition).

Secondly, many couples—and society at large—may support consensual child-rearing arrangements such as adoption or guardianship. Adoption forms a parent-child bond between genetic strangers. In Singapore, adoption takes place under the Adoption of Children Act, a statute that has been in force for almost 80 years, surely long enough for society to get used to seeing families of mixed race without, as the Court suggests, making negative judgments.

Thirdly, the Court fixed the compensation at a percentage of the costs of Baby P’s upkeep. This means that different sums would be awarded for different cases, depending on the claimant’s station in life. Is the lack of genetic sameness more painful for the wealthy than for the less well-heeled? As a matter of policy and principle, perhaps the loss of genetic affinity should be compensated uniformly across cases, because the loss is about the worth of some intrinsic human value.

After this case came to light, Parliament incidentally passed the Status of Children (Assisted Reproduction Technology) Act. This Act prescribed rules to determine the legal parenthood and status of children conceived where the wrong egg, sperm or embryo was used in an assisted reproduction fertilisation procedure. The Act, however, left the question of remedies untouched. Perhaps it should be amended to provide for specific, fixed sum remedies in the event of IVF mishaps. This would allow IVF service providers to account for a business risk without resorting to sharp fee increases or contractual exclusions of liability. And ultimately, are these not matters that should be decided by Parliament, as the voice of the electorate, rather than left to the imperfect arguments of two lawyers wrangling in a courtroom?


TSMP law corporation