Friday, October 7, 2016

IVF mix-up: Awarding damages ‘would not belittle child’s value’



OCTOBER 7, 2016

SINGAPORE — Paying damages to the parents of a child who was conceived in an in-vitro fertilisation (IVF) sperm mix-up at Thomson Medical does not necessarily belittle the child’s value, said a law professor appointed to provide an independent view on the case, which is now before the Court of Appeal.

Such a claim can be premised on how a promised outcome was not fulfilled, which does not require the parents to say anything about the worth of the child, said Associate Professor Goh Yihan from the Singapore Management University’s School of Law, the amicus curiae or “friend of the court” appointed to submit his views.

The case dates back to 2012, when the mother of the child filed a lawsuit against Thomson Medical, its fertility centre and two embryologists over a mix-up in sperm samples. The mix-up had led to her having a baby with a stranger’s sperm instead of her husband’s. The parties are not named to protect their identities.

The woman had sought damages for various categories of claims, including the “upkeep costs” of the child — referred to as “Baby P” — such as expenses for basic necessities and education up to tertiary level.

The defendants have admitted liability for the incident, which took place in 2010. But Justice Choo Han Teck last year disallowed the claim for upkeep, citing “policy considerations” — that Baby P should not have to grow up thinking that her existence was a mistake. The woman then appealed.

Yesterday, the panel of five judges — including Chief Justice Sundaresh Menon — raised the question of whether the emotional harm suffered by the woman can be compensated under tort of negligence, and if this is so, how this can be quantified.

In written submissions to the court, Assoc Prof Goh said the law regards the birth of a healthy child as a blessing and so he or she will always be a benefit rather than a detriment. But damages should not be denied on this “broad premise”, “without more when it is intuitively clear that the parents have suffered some kind of expectation loss due to the breach of contract”, he said.

On whether there was a breach of contract — which is among the factors that would determine if upkeep costs can be awarded — Assoc Prof Goh said there are two terms of contract to consider: That a healthcare service is performed with “reasonable care and skill”, and a “warranty” to achieve a particular result.

In the present case, while there is “no guarantee” that a baby would be successfully conceived through the IVF procedure, it “goes without saying” that the doctors would not use genetic material that did not come from the parents, Assoc Prof Goh said.

As for determining the quantum of damages, Assoc Prof Goh said factors to be considered could include the cost of the IVF procedure as a “rough proxy”, the permanence of the procedure, which “corresponds to the appellant’s expected pleasure and amenity from the life of the child”, and the importance placed on the procedure to provide her with the pleasure of having a child.

“Together, these factors should lead to a ‘restrained and modest’ award of damages for loss of amenity, if they can be awarded in the first place,” Assoc Prof Goh said.

On whether punitive damages should be awarded, Assoc Prof Goh said in this case, Thomson Medical and other respondents were “merely negligent, rather than consciously intentional or reckless, in their conduct”.

“Thus, even if punitive damages can be awarded for purely negligent conduct, the quantum of damages must be reduced to reflect the lesser degree of culpability,” he said.

[The Assoc. Prof. is very reserved in his qualified comments. As he rightly should be. But I am not sure that he has addressed the key consideration of the original judgement - that such a decision or award of damages would implicitly impugn the relationship of the child and the parents. 

BUT... the Assoc Prof does not propose to award damages for the upkeep of the child and that is a tacit agreement with the original judgement. 

His recommendation that damages be guided by the cost of the IVF procedure as a proxy for the "loss of amenity". What amenity? It is here that he strays into but does not address the key issue of the original judgement - the loss of amenity refers to the loss of "expected pleasure and amenity from the life of the child”. This draws into consideration the worth of the child to the parent, and how the court will attempt to quantify that worth.

In this, I agree with the original trial judge. It would be a gross injustice to the child to treat the child as a basis for an award. 

AP Goh hedges his recommendation with "if they can be awarded in the first place". 

To be sure, this is a difficult question of law that seeks to answer a difficult moral or value judgement. 

IMHO, I believe the original judgement should stand. But lets see what the Court of Appeal decides.]

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