The Singapore Civil Court of Appeal has found that the wrongful fertilisation of a woman’s egg by the sperm of a third party amounted to grounds for damages due to loss of genetic affinity.
A couple of both Singaporean and Caucasian descent underwent in-vitro fertilisation treatment with a clinic in Singapore. An error occurred wherein a child was delivered that was biologically related to only her mother, the egg having been fertilised using the sperm of an unknown Indian third party rather than that of the husband.
The mother claimed that the clinic was in breach of contract and had acted negligently by fertilising her egg with the wrong sperm. Damages were sought for the pain and suffering resulting from a child being born that did not contain the genetic material of both parents, and the expense of ‘upkeep’ of the child.
The Court of Appeal therefore had to consider whether expenses that would arise in relation to the unplanned birth of a healthy child born as a result of the negligence of a medical professional were a compensable head of damage. In claiming for upkeep, the parents were arguing that they never planned to have the child that was conceived but instead planned for a child with whom they would share genetic kinship. The Court found, however, that it went against public morals to award compensation for the birth of a healthy child, and conflicted with a parent’s duty to love, care and provide for their child.
The Court of Appeal of appeal further rejected the claim for loss of autonomy as actionable damage stating that is was too nebulous and too contested a concept to ground a claim. It stated that the loss of autonomy does not conform to the concept of damage under tort. However, the Court did consider that loss of autonomy to be important when examining the issue of genetic affinity. Due to the clinic’s negligence, the mother suffered a loss as she was unable to have a child with her husband. The Court of Appeal found that the desire to have a child with one’s spouse is a basic human impulse and that when an individual is prevented from doing so, the loss is keenly and deeply felt.
Along with the loss of genetic affinity, there was also found to be loss of autonomy on account of the removal of the mother’s ability to make free choices regarding her reproductive life and her choice to have a family in accordance with her aspirations. While the Court agreed that it could not award the full amount for upkeep, the mother would have to be compensated to an appropriate degree which fully reflected the circumstances. Although the Court had determined that this was not an appropriate case in which to award upkeep costs as such, the financial costs of raising the child were notseen as wholly irrelevant as, absent such costs, there would be “no other criterion or standard”by which to assess the quantum of damages that ought to be awarded. The mother was therefore awarded 30% of the cost of upbringing the child to properly reflect the seriousness of the loss. The Court declined to award punitive damages.
Click here for the judgment in ACB v Thomson Medical Pte Ltd and others.