New award for loss of genetic affinity a gain for IVF law

The Court of Appeal last month created a new compensation award for "loss of genetic affinity" in the case of a baby conceived with the wrong sperm following an IVF mix-up.

Genetic affinity loss refers to the cost and hurt to a parent of being deprived of having a baby with her spouse via reproductive technology through the negligence of a third party.

In the 2010 incident, the woman and her husband went to the Thomson Medical Centre for in-vitro fertilisation (IVF) treatment but a stranger's sperm - instead of her husband's - was used to fertilise her extracted eggs.

The mistake resulted in her giving birth to a baby girl with her genetic make-up but not her husband's. She sued the centre for negligence in 2012 seeking, among other things, damages for the baby's upkeep until she grew up.

The end result: The apex court rejected her upkeep claim but recognised she had suffered loss termed as "genetic affinity". The court said her desire to have a child of her own with her husband "is a basic human impulse, and its loss is keenly and deeply felt".

It pointed out ordinary human parents and children are bound by ties of blood and this fact of biological experience - heredity - carries deep socio-cultural significance. "And when, as in the present case, a person has been denied this experience due to the negligence of others then she has lost something of profound significance and has suffered a serious wrong. This loss of 'affinity' can also result in social stigma and embarrassment arising out of the misperceptions of others, as was the case here."

The five-judge panel placed the compensation sum at 30 per cent of the financial costs of raising Baby P, with the precise sum to be assessed by the High Court. The ground- breaking judgment, unprecedented here or elsewhere, suggests the court is prepared to address compensation for loss in an uncharted area.

Issues of heredity and family become all the more important in an era when IVF is increasingly common and genetic manipulation is well on the way to becoming reality. Gene-editing technology, for example, could in future be used to tweak a child's traits more in favour of one parent than the other.

Problems arise when plans go awry and the court has in a way served notice it will not back away from looking at losses not hitherto compensated within the traditional categories of civil claims. Such issues were highlighted by National University of Singapore (NUS) biomedical ethics researcher G. Owen Schaefer, who underlined the importance of the concept in this "genomic era".

Even family publication parentsworld flagged that after the incident, "it is expected that couples who are seeking alternative methods to conceive would be greatly concerned about this issue".

One practical effect in the immediate case is whether the father could also have been eligible to be compensated for the loss of genetic affinity, just like Baby P's mother. "By recognising loss of genetic affinity as a head, it would appear that the husband as the legal father has also suffered a loss, perhaps even more acutely than the mother as he has no genetic connection with the child," said NUS law faculty professor A. Kumaralingam.

Baby P's father, as her legal parent, has rights and obligations but the rights of her biological father remain to be established or clarified. Lawyers point out that the man has not surfaced to make any civil claim for potential compensa- tion for over six years - the recognised deadline in civil claims - which means that the case is moot.

Medical confidentiality constrains him from being identified to third parties without consent but what of his rights as a biological parent? Parliament passed the Status of Children (Assisted Reproduction Technology) Act in 2013 and it states that interested parties involved in such mix-ups can apply to the court to be declared as parents of the child within two years of the mistake being discovered. The Act does not apply in his case which preceded the Act and one possible unknown is that he could have relinquished his rights formally despite the nexus.

If that were to happen, it would not be without precedent as in the case of the twins at the centre of a custody battle between their Singapore mum and American dad in 2011. It emerged while the twins were here that the biological father was someone else who was understood to have signed his rights away, according to the twins' mother then. Interestingly, the twins knew of this when they were court-ordered to return to the US accompanied by their legal father six years ago. The access tussle between the divorced mum and dad is still ongoing in the US to date.

While the litigation in the case of Baby P is over, it is possible that the biological father may surface at some point in time in the future, for whatever reason, for example, should Baby P gain some prominence that bears notice. Such is the sad saga that while all appears over in the court arena, the affected parties will continue to court the consequences for good.

Such prospects, in this area of law that is in its infancy, bear contemplation, given that the numbers resorting to IVF techniques are expected to rise, and the need to minimise incidents.

In its annual report issued last October, Britain's Human Fertilisation and Embryology Authority (HFEA) said it received reports of 517 incidents, out of approximately 72,000 cycles of fertilisation treatment in 2015. "Whilst incidents make up less than 1 per cent of treatment, any incident is one too many and is one of the reasons we produce this report," added HFEA.

For the year under review, there were no Grade A incidents for the first time in the five years since HFEA was established in Britain. A Grade A category error or incident includes events such as the death of a patient, being implanted with the wrong embryo, or something that affects a large number of patients, such as a storage-unit malfunction.

As IVF continues in an important way to help couples with reproductive difficulties and the numbers multiply, the British examples and the case of Singapore's Baby P illustrate this is a difficult area when incidents arise - as the Court of Appeal suggested in dealing with the case - with ongoing ramifications.

Like others elsewhere, the court here has shied away from the claim for upkeep of the baby on principle, but unlike others, it has inched forward to detect the need for redress by recognising "loss of genetic affinity". What a signal gain for the law's development indeed in finding such an inventive loss.

A version of this article appeared in the print edition of The Straits Times on April 11, 2017, with the headline 'New award for loss of genetic affinity a gain for IVF law'. Print Edition | Subscribe