Sandra carried the X chromosome linked genetic mutation, Incontinentia Pigmenti (ÏP), which results in disability if inherited in female children and spontaneous miscarriage if inherited by a male foetus.  She had conceived naturally on a couple of occasions previously and decided to undergo prenatal genetic testing. Unfortunately, she had miscarried with an affected male foetus and had to terminate a pregnancy with an affected female detected on CVS testing.

Sandra and Stewart desperately wanted children but could not cope with the pain and disappointment of another miscarriage or termination. They sought the advice and services of a well-known company in South Australia offering medical reproduction services through in-vitro fertilisation with the intention of having their embryos genetically tested before implantation.

Eggs were inseminated and a number of embryos were sent to a genetic laboratory for testing. It was subsequently reported that one of the embryos was unaffected by the Incontinentia Pigmenti mutation. On the advice of the IVF company Sandra and Stewart proceeded with implantation of the embryo and were later informed by telephone that Sandra was pregnant with a male child. Relying on that advice Sandra continued with the pregnancy without submitting to further in utero genetic testing (which carried certain risks to the foetus) upon the correct understanding that if the foetus was affected by the Incontinentia Pigmenti mutation, being male, it would abort spontaneously.

Following the routine 19 week morphology scan Sandra and Stewart were advised by the sonographer that the foetus was in fact female. They were advised that, because of the stage of advancement, termination of the pregnancy was not available to them. Sandra went to full term and gave birth to Emily who it was confirmed suffered from Incontinentia Pigmenti, the very situation they had engaged the IVF company to avoid.

As a result Sandra and Stewart have suffered disabling anxiety and depression as well as financial loss in relation to their own respective psychiatric injuries and the costs of care and treatment necessitated by their daughter’s disabilities.

The Law Office of Conrad Curry sued the IVF provider and the genetic testing laboratory for breach of contract and negligence. Importantly, it was alleged that the IVF agency wrongly reported the gender as male on the basis that only one X chromosome was seen and without testing for the presence of a Y chromosome when it should have done so; that there was no ethical prohibition in Australia precluding pre-implantation gender testing where there exists the risk of a sex-linked genetic disorder; and the information that the foetus was male was conveyed in a telephone call from a laboratory technician.

The IVF company and the genetic laboratory claimed that Sandra and Stewart relied on claims that Sandra and Stewart were informed of, and agreed to accept, the risks of testing inaccuracy. That suggestion was rejected on the basis that there was an implied proviso that they would exercise reasonable care.

Sandra was aware of her carrier status and wished to eliminate the chance of having a child with Incontinentia Pigmenti. That was the very reason that she consulted with, and agreed to the treatment recommended. It is apparent that the decision to proceed to implantation and to continue with the pregnancy would not have been made had Sandra and Stewart been provided with correct advice. Their decision not to embark on further, potentially dangerous intrauterine testing was made on the correct understanding that a male embryo (as had been implanted according to the advice provided by the first defendant) would abort spontaneously if affected by the Incontinentia Pigmenti mutation.

The Law Office of Conrad Curry was successful in negotiating significant compensation for Sandra and Stewart for their own psychological injuries and for the future care required by their daughter over and above that required of a child without disability.

For more information on Incontentia Pigmenti you can visit the Incontentia Pigmenti International Foundation. 

If you would like legal advice regarding genetic testing and/or IVF procedures you can book an obligation-free consultation where we can advise you about your options.