Court says 'no' to upkeep claim for IVF mix-up baby

Birth of healthy child 'should not be treated as matter for compensation'

A WOMAN who sought damages in order to raise her child conceived through an in-vitro fertilisation sperm mix-up will not get her claim, the High Court has ruled.

Justice Choo Han Teck held that if she was allowed to claim for upkeep, every cent spent in bringing up the child would remind her it was "money from a compensation for a mistake".

"Baby P should not ever have to grow up thinking that her very existence was a mistake," he said in judgment grounds released yesterday.

Baby P, who turned four last October, was conceived by mistake with another man's sperm instead of the woman's husband's - the result of a mix-up at Thomson Medical where she received IVF treatment. Thus the girl she gave birth to is biologically unrelated to her husband.

The 39-year-old woman sued Thomson Medical, its fertility centre and two embryologists, seeking damages for pain and suffering, medical costs, income loss and upkeep for the baby. Upkeep is understood to be a major part of the sum sought.

The defendants accepted liability for the mistake, but a preliminary issue before damages could be assessed was whether they should pay for the baby's upkeep.

This issue of whether Baby P was entitled to such expenses as a matter of law made this a test case here.

The upkeep expenses included her pre-school needs in Beijing where she now lives with her parents, further education in Germany, her father's home country, as well as daily necessities until she is financially self-reliant.

The parties cannot be named to protect her identity.

Senior Counsel N. Sreenivasan and lawyer S. Palaniappan argued that the mother should be compensated, as the damage from the mistake could have been prevented had she been told early enough so she could abort the pregnancy.

Not allowing the claim would afford immunity to the defendants, among other things.

But Senior Counsel Lok Vi Ming and lawyer Audrey Chiang countered for Thomson that this was about a child born healthy, which is a "blessing" and not a "liability".

To allow compensation for the wrong or injury in the birth of a healthy child is "morally repugnant and against public policy", they said, among other things.

Justice Choo made it clear that a parent is obliged to maintain a child, regardless of whether the child is adopted or natural, noting the mother had "all along" wanted the child. "When a parent has accepted his role in respect of that child, the obligation is his (and his spouse's). He cannot be a parent and have someone else pay to bring up the child."

The judge acknowledged that the issue of whether an upkeep claim for a wrongful birth should be allowed is a contentious one, noting the divergence of views in legal cases spanning Australia, Britain and the United States.

He conceded that legislative intervention may be needed but expressed no definite views on this as it was not needed to settle this case.

Justice Choo said there are "cogent policy considerations" for not making a defendant liable for upkeep and said he shared the views of an English judge who said the parent who is placed in a predicament but does her duty cannot be at an advantage compared with the parent who falls in love with her child at birth and reconciles herself to her fate.

He cited another English judge saying there was something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation.

Justice Choo noted that the Women's Charter allowed people who had accepted a child into their family to seek a court order compelling the father or mother to pay for the child's upkeep.

But under such a scenario, the only person who may be liable would be the sperm donor.

"I doubt he would have been ordered by any court to pay for Baby P's upkeep, given the circumstances of the case," said Justice Choo.

vijayan@sph.com.sg