Judge rules woman in IVF mix-up can sue for expenses to raise child

SINGAPORE — The woman, who bore a baby conceived with a stranger’s sperm after a hospital botched her in-vitro fertilisation (IVF) procedures, will be allowed to sue the hospital for the expenses to raise the child.

The mother was barred from including this so-called “upkeep claim” in her suit — understood to be in excess of S$1 million — after an Assistant Registrar agreed with the hospital, Thomson Medical, that it should be struck out.

However, while Justice Choo Han Teck allowed the mother’s appeal and reversed the Assistant Registrar’s decision, he made clear his views on her pursuit of the upkeep claim in his grounds of decision released yesterday.

“What I now say may not be a principle in law, but I believe that it is a treasured value in humanity, and that is that no parent would want her child to grow up thinking that she (the child) was a mistake. Were the plaintiff to succeed in the Upkeep Claim ... every cent expended in the upbringing of (the baby) will remind her that it was money from a compensation for a mistake.

“(The baby) should not ever have to grow up thinking that her very existence was a mistake. If there is any reason for not pursuing or granting the Upkeep Claim, the emotional wellbeing of (the baby) is reason enough,” the judge added.

The suit arose after Thomson Medical’s fertility centre made a blunder in its IVF procedures and fertilised the woman’s extracted eggs with another man’s sperm, instead of her husband’s. The couple is not named to protect the child’s identity.

Discovering the error only after delivering the baby girl in 2010, the woman, now 39, sued the hospital, its fertility centre and its two embryologists for pain and suffering, medical costs, loss of income, upkeep for the baby and provisional damages for injuries on the child’s behalf.

In his judgement, Justice Choo noted that the baby was not a “loss” arising from a breach of duty. In fact, the woman was prepared to spend money to bring up the baby because she had decided with her husband to keep the baby even though he was not the biological father.

While it was “understandable” for the couple to feel “aggrieved” by the hospital’s error, the judge said that expenses for the upkeep of the baby “cannot be considered damage or loss arising from the defendants’ conduct”.

He stressed, though, that the judge hearing the suit “is at liberty to form his own views on the Upkeep Claim”.

“I have only expressed mine by reason of the peculiar situation arising from the defendants’ application to strike out the claim at this stage,” he added.

Nevertheless, Justice Choo questioned why Thomson Medical had fought to strike out this claim from the mother.

Since the hospital had challenged whether it was reasonable to award damages on grounds of law, the dispute should be addressed only after the court has determined liability, he pointed out. Asked Justice Choo: “How does the court assess damages in a contract claim before liability has been determined?”