In the UK Court of Appeal decision ARB v IVF Hammersmith and R  EWCA Civ 2803 delivered on 12 December 2018 has resolved the question as to whether a contractual claim for damages as the result of an alleged ‘wrongful birth’ of a perfectly normal child has the same legal policy limits as a claim brought in negligence where a parent cannot be awarded damages for the costs of the child’s upbringing.
The claimant and the second respondent were in a relationship. Given issues with natural conception they undertook successful fertility treatment at an IVF clinic and froze five embryos after the birth of their first child. Pursuant to the contractual agreement with the laboratory, none of the embryos could be thawed and implanted without the express consent of both parents, and there were various safeguards in place.
The couple later separated and the father moved on and married another woman.
The mother wanted more children and returned to the IVF clinic with a consent form on which she had forged her former partner’s signature. Unfortunately, the forgery wasn’t detected and an embryo transfer took place which resulted in a second child. At law the father had joint parental and financial responsibility for the child.
The father claimed substantial damages on the grounds that the embryo had been transferred without his informed written consent and that as a result he was the father of an ‘unwanted’ child. He brought his claim both in negligence and for breach of contract. The claim included the cost of schooling, babysitting and all of the usual expenses which parents incur during the raising of their children.
At trial the judge held that there was a breach of contract in respect of the express term requiring informed consent. The claim in negligence was dismissed on the basis that the IVF clinic had reasonable systems in place. Importantly, he held that no damages were recoverable in contract (as is the case in tort) because of the legal policy set out in McFarlane v Tayside Health Board  2 A.C. 59 and Rees v Darlington Memorial Hospital NHS Trust  UKHL 52 precluding the recovery of damages for the costs of bringing up a healthy child in tortious claims following a wrongful conception.
On appeal the Court of Appeal held that the IVF clinic was in breach of the duty to exercise reasonable care and the express term of the contract to obtain informed consent of both parties. However, it was held that the legal policy limiting the recovery applied regardless of whether the action was brought in tort or contract.