ARB v IVF Hammersmith Ltd

A forged signature does not constitute consent. Where a fertility clinic expressly undertakes not to thaw and replace embryos without both parties’ written consent, that obligation may be strict and is not reduced to a duty of reasonable care. Statutory consent requirements and contractual obligations must be analysed separately. An earlier consent may cease to be effective where the parties are no longer united in pursuing treatment together. However, legal policy prevents recovery of the costs of bringing up a healthy child, even where the claim is framed in contract and the contractual obligation is strict. The ordinary rules of remoteness do not independently bar such a claim.

ARB brought a contractual claim against IVF Hammersmith Ltd for the financial cost of bringing up E, a child born after an embryo created from ARB’s sperm was thawed and implanted in R. The clinic relied on a form bearing a signature purporting to be ARB’s. ARB alleged that R had forged it and that he had not consented to the treatment. The clinic brought Part 20 proceedings against R for an indemnity.

The central issues were whether the signature was forged, whether ARB had otherwise consented, the nature of the clinic’s contractual obligations, whether reasonable care had been exercised, and whether public policy or remoteness barred recovery.

1. ARB proved, on the balance of probabilities, that R forged his signature on the Consent to Thaw form. The handwriting evidence, including the traced pencil signature beneath the biro signature, strongly supported that conclusion. ARB had not otherwise given informed consent to the treatment.

2. Thawing was a process preparatory to use and did not itself require separate written statutory consent under Schedule 3 to the Human Fertilisation and Embryology Act 1990. Implantation was use. The earlier MT1 consent was no longer effective because ARB and R were no longer united in pursuing treatment together, applying the reasoning in Evans v Amicus Healthcare Ltd [2005] Fam 1.

3. The clinic owed an implied contractual obligation to take reasonable care in complying with its statutory and licensing obligations. It was not in breach of that obligation. Applying the Bolam/Bolitho standard, the clinic’s procedure reflected practices used in IVF clinics at the time, and the clinic reasonably understood that ARB and R were still being treated together. The weaknesses in the former procedures were concerning but did not make the practice irrational.

4. The Cryopreservation Agreement contained an express obligation not to thaw and replace embryos without both parties’ written consent. Properly construed, that obligation was strict. A forged consent was no consent, and the clinic’s reliance on the apparent genuineness of the signature did not avoid the contractual obligation.

5. ARB’s failure to notify the clinic of the parties’ separation did not preclude his claim. The clinic failed to plead or prove that notification would have prevented the treatment or caused it to take different steps. Contributory negligence could not apply to the strict obligation; alternatively, if the reasonable-care duty had been breached, damages would have been reduced by one-third.

6. Despite the breach of the strict contractual obligation, legal policy barred recovery of the pleaded costs of bringing up a healthy child. The reasoning in McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 applied because the contractual and tortious measures of loss converged and no relevant distinction arose from the strict nature of the obligation.

7. The claim was not barred in principle by remoteness. The breach was defined as thawing and replacing an embryo without prior written consent. The resulting losses were not too unusual for the purposes of the applicable contractual rules, although individual heads of loss might require further assessment.

8. There was judgment for the clinic on ARB’s claim and judgment for R on the Part 20 claim, subject to costs and form of order being addressed separately.