Time for ‘wrongful birth’ decisions to be reviewed

ARB v IVF Hammersmith [2017] EWHC 2438 (QB) concerned the birth of a child born after a frozen embryo was implanted into ARB’s ex-partner after she forged his consent to thawing the embryo. Mr Justice Jay ruled the clinic was in breach of its strict obligation to ensure ARB’s consent had been obtained, and rejected submissions that the claim for the costs of raising a child was too remote. However, he concluded that despite the existence of the strict contractual duty, he was bound by two House of Lords decisions— McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, that a claim in tort for the upkeep of a healthy child could not be sustained in law.

According to Serjeants Inn Chambers, the chambers of counsel for ARB, the case is the first wrongful birth claim founded on breach of contract rather than clinical negligence, and is a landmark case on the duties owed by IVF clinics. Susanna Rickard, Serjeants’ Inn Chambers, junior counsel for ARB, said: ‘This is a landmark decision, and a major addition to the canon of cases on so-called “wrongful birth”.

‘The IVF clinic was in breach of an express contractual term not to create a child without the father’s consent. The claimant won every single legal point germane to his primary case, but by the application of the “policy” point borrowed from the House of Lords’ decisions in McFarlane and Rees —that a healthy child is a blessing rather than a detriment—the decision has conferred upon the IVF clinic effective impunity from the normal consequences of their breach of contract. It is time for the controversial decisions in McFarlane and Rees to be reviewed.’