Apex court dismisses appeal for upkeep costs in IVF mix-up case

SINGAPORE — The highest court of the land has upheld a High Court decision to not award damages for the upkeep of a child conceived in an in-vitro fertilisation (IVF) sperm mix-up at Thomson Fertility Centre, saying it would hurt the institution of parenthood by doing so.

However, the parents should be compensated for suffering a loss of “genetic affinity” due to negligence, the Court of Appeal said in a 141-page judgment issued yesterday.

For such a loss — which could also result in social stigma and embarrassment arising from the misperceptions of others — the Singaporean woman should be compensated for one-third of the financial costs of raising the child, said the court.

The legal suit started in 2012, when the woman, who cannot be named due to a court order, sued Thomson Fertility Centre which had conducted the IVF treatment, its parent company Thomson Medical as well as two embryologists.

Back in 2010, the woman, wanting another child, had gone for another IVF treatment at Thomson Fertility Centre, and later gave birth to a daughter in October that year.

But the woman and husband noticed that the child — referred to as “Baby P” in court documents — had a different skin tone and hair colour from their own, as well as that of their eldest son, who was conceived through IVF.

Further tests concluded that the woman’s egg had been fertilised with the sperm of an unknown donor of a different ethnicity, instead of her husband’s.

In her lawsuit, the woman had claimed for damages, including costs to upkeep the child, but this was dismissed by the High Court on the basis of policy considerations.

It also noted that awarding upkeep costs would be detrimental to Baby P’s well-being and would be in conflict with the essence of a parent-child relationship. The woman then filed an appeal against the High Court ruling.

The apex court, in a unanimous judgement, noted that awarding upkeep costs would go against public policy and interest, as the law views that parenthood carries legal and moral obligations, and this cannot be valued as a “loss”.

Parenthood obligations also cannot be viewed as a subject of a claim for damages.

The case had been heard by five judges, instead of the usual three — a recent system introduced for selected cases of jurisprudential significance.

However, the apex court said it also recognises the “loss of genetic affinity” suffered by the woman due to the negligence of the parties involved.

As such, she should be awarded damages set at 30 per cent of the costs of raising the child, with the precise quantum to be determined by the High Court.

“The court recognises that the appellant’s desire to have a child of her own, with her husband, is a desire that is a basic human impulse, and its loss is keenly and deeply felt,” it added.

In its judgement, the Court of Appeal also highlighted a new framework in awarding punitive damages, where proof of intentional wrongdoing will no longer be a prerequisite.

Punitive damages can thus be awarded due to negligence alone.

However, in the woman’s case, the court said it was unable to conclude that punitive damages should be awarded to her.

“The facts, as they currently stand, are simply too scant to support a finding of outrageous conduct,” it added.

The court also touched on the dilemma it faced: By not awarding the upkeep costs, the woman would receive a comparatively modest award for her pain and suffering.

Yet, to award her such costs would denigrate Baby P’s worth as her existence would be viewed as a “continuing source of loss” to the woman.

The court concluded: “The life of every person carries with it its own inestimable value and dignity, and the worth of a person can neither be enlarged nor its importance abridged by any pronouncement of this court”.