A man whose ex-partner had their embryos wrongfully implanted against his will has lost his appeal against the fertility clinic to be awarded damages for the pecuniary loss of bringing up his daughter.
The case ARB v IVF Hammersmith concerned a couple who had created embryos for use in their IVF treatment, but who separated before agreeing to begin the fertility treatment. Without the father’s consent, the mother had their IVF clinic breach their contract with the couple and implant some of the embryos, and she subsequently gave birth to a daughter. Eight years later, the father has lost his appeal to be awarded damages for the costs, past and future, incurred by bringing up the child.
Citing authorities including McFarlane v Tayside Health Board, the Court followed the precedent in tort that damages should not be awarded for the financial loss of raising a healthy child. The precedent is based on multiple contentious policy concerns, including recognising that the ‘blessing’ of a healthy child is such that it would be wrong to award damages for its existence.
These policy concerns have been met with resistance from some judges and academics, who argue that a child can be deeply valued and loved but still be financially expensive, and that the court should place the financial burden on the parties responsible for the wrongful conception, in this case, the IVF clinic who breached their contract.