ARB v IVF Hammersmith & Anor

The legal policy which prevents recovery of the costs of raising a healthy child following negligent fertility treatment also applies to a contractual claim for those costs. The bar operates even where causation and contractual foreseeability are established. It applies to a strict contractual obligation where the contract contains no agreed measure of damages.

An IVF clinic’s clear undertaking not to thaw or replace an embryo without both partners’ written consent is a strict obligation, not merely a duty to take reasonable care. A consent process which permits an attending partner to supply an unverified signature for an absent partner is neither reasonable nor responsible.

ARB and R underwent IVF treatment at the respondent clinic. After they separated, R forged ARB’s signature on a consent form. The clinic then thawed and implanted an embryo created from their gametes, resulting in the birth of a healthy daughter.

Jay J found that the clinic had breached its contract with ARB, including an express strict obligation to obtain his written informed consent. He nevertheless refused damages for the costs of the child’s upbringing on legal-policy grounds: [2017] EWHC 2438 (QB).

ARB appealed that policy ruling. The clinic’s respondent’s notice challenged the finding that the consent term was strict and contended that the clinic had exercised reasonable care. The central issue was whether the wrongful-birth policy bar applied to this contractual claim.

Appeal dismissed. The court upheld the refusal of damages for the costs of bringing up the healthy child, although it accepted ARB’s separate challenge to the clinic’s reasonable-care consent process.

1. The policy in McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 prevented recovery. The claimed loss was caused by the breach and within the parties’ reasonable contemplation. Those matters did not overcome the policy objection: the benefits and burdens of raising a healthy child cannot be calculated in money, and the law should not treat the child as a financial liability.

2. The distinction between tort and contract did not justify a different result. In the absence of a liquidated-damages provision, the duty to pay damages is a secondary obligation implied by the common law. Legal policy forms part of that law. Allowing a privately funded patient to recover when an NHS patient could not would produce an unjustified difference.

3. Clause 1(a) of the agreement imposed an absolute contractual restriction. Read in its contractual context, it required the clinic not to thaw or replace an embryo unless both partners had given written consent. The obligation concerned obtaining a document, rather than the exercise of medical or scientific skill, and was therefore strict. That construction gave effect to the central consent requirements of the Human Fertilisation and Embryology Act 1990.

4. Although unnecessary to the dismissal because the policy bar was decisive, the court allowed ARB’s second ground. The former procedure delegated verification of an absent partner’s consent to the attending partner. It was illogical and abrogated the clinic’s consent duty. Applying the Bolitho standard, the practice was neither reasonable nor responsible.

5. The respondent’s remoteness ground required no determination. The appeal was dismissed.

1. Court of Appeal (Civil Division) Dismissed ARB’s appeal and upheld the policy bar against upbringing costs. It also held that the clinic’s consent-verification process was unreasonable, but that ruling did not affect the outcome: [2018] EWCA Civ 2803.

2. High Court (Queen’s Bench Division) Jay J found that the clinic had breached a strict contractual obligation to obtain written informed consent, but held that legal policy barred recovery of the costs of raising the healthy child: [2017] EWHC 2438 (QB).