In February 2008 the father and the mother had in vitro fertilisation treatment at the defendant’s clinic. They consented to freeze a number of embryos and signed agreements on an annual basis for those to remain in storage. At around the same time the father signed a form consenting to the use of his sperm, and any resulting embryos, in the mother’s treatment (“the MT1 form”). In June 2008 the father and mother signed a cryopreservation agreement, by which they understood that they both had to give written consent before any embryos were thawed and replaced. Another clause provided that in the event of divorce or separation, the clinic would only thaw and replace embryos if both partners gave written consent at the time of embryo replacement. By the end of May 2010 the father and mother had effectively separated. In October 2010 the mother handed the clinic a form consenting to the thawing of embryos (“consent to thaw form”), which required signature by both of them and which was signed by her and purportedly signed by the father. On the basis of that document, in November 2010 an embryo was thawed and successfully implanted in the mother’s womb. Consequently a daughter was born in 2011. The father brought a claim in contract against the clinic, seeking substantial damages in recoupment of past and future financial losses. He contended that he had not signed the consent to thaw form, that it had been forged by the mother, and therefore that the daughter was an unwanted child and that the clinic had to bear the financial consequences. The clinic in turn brought CPR Pt 20 proceedings against the mother for an indemnity on the basis of the tort of deceit.
On the father’s claim and the clinic’s Part 20 claim—
Held, (1) On the evidence, the mother had forged the consent to thaw form dated October 2010 and the father had not given his informed consent to that procedure. But thawing an embryo amounted to a process preparatory to use, i e preparatory to the act of replacing the embryo, and so did not amount to “use” within the meaning of Schedule 3 of the Human Fertilisation and Embryology Act 1990. Therefore it was not necessary under the 1990 Act for the clinic to obtain the father’s written informed consent to the thawing of the embryo. The MT1 form which he had signed in February 2008 remained, unless withdrawn and while the relevant persons were being treated together, a valid continuing consent to the implantation of the embryo, notwithstanding that that was a further procedure. However, since at the time of implantation the mother and father were no longer united in their pursuit of treatment, the February 2008 MT1 form was ineffective to amount to valid consent and the clinic could not rely on it (paras 209, 210, 234, 235, 238).
(2) Although as a matter of fact there had been no valid MT1 form in place in November 2010 for the use of the embryo, the clinic owed an implied obligation to exercise reasonable care in relation to complying with its obligations under the 1990 Act, the Human Fertility Embryology Authority’s guidance and its licence conditions at the time consent was being sought for the thawing and replacement of the embryo. Moreover, on the true construction of the cryopreservation agreement, the clinic owed a strict and express obligation to the father not to thaw and replace an embryo if he did not give his written informed consent. Since the clinic accepted that it had failed to discharge its duty to secure such consent, it was in breach of contract (paras 214, 246, 258, 262).
But, (3) claims dismissed. The legal policy considerations enunciated by the House of Lords in dismissing a negligence claim in respect of wrongful conception resulting in the birth of a child, which was undoubtedly applicable to contractual claims founded on reasonable care obligations in the light of the principle of relevant equivalence or congruence, applied equally to contractual claims founded on strict obligations in circumstances such as the present case where the parties had not sought to quantify or liquidate the damages payable in the event of breach. The legal policy objections, most of which were apt to apply where the contractual obligation was strict, could be characterised as: the inherent difficulty of measuring the loss, the unwillingness to regard the child as a financial liability, the refusal to offset the benefits which would accrue from parenthood from any additional financial liabilities, the feeling that it was morally unacceptable to attempt that exercise, and the notion that it was not fair, just and reasonable to allow that sort of claim. Accordingly, legal policy precluded an award of damages against the clinic in respect of the costs of bringing up the child (paras 317–319, 323, 341).
Michael Mylonas QC, Susanna Rickard and Jamie Mathieson (instructed by Hughes Paddison Solicitors, Cheltenham) for the father.
Jeremy Hyam QC and Suzanne Lambert (instructed by Hempsons) for the clinic.
Mark McDonald and Christopher Pask (instructed by Axiom Stone) for the mother.