IVF mix-up: Medical centre not liable for child's upkeep

Thomson Medical Centre is the first private hospital to set up an in-vitro fertilisation clinic in 1987. The High Court has rejected a bid by the mother of a baby born from an in-vitro fertilisation (IVF) mix-up to get those responsible to pay for ra
Thomson Medical Centre is the first private hospital to set up an in-vitro fertilisation clinic in 1987. The High Court has rejected a bid by the mother of a baby born from an in-vitro fertilisation (IVF) mix-up to get those responsible to pay for raising the child. The case involves Thomson Medical, its fertility centre and two embryologists for negligence. -- ST FILE PHOTO: CHEW SENG KIM

Court rules that birth of healthy child cannot be the subject of damages

The High Court has rejected a bid by the mother of a baby born from an in-vitro fertilisation (IVF) mix-up to get those responsible to pay for raising the child.

Assistant Registrar David Lee, while admitting that this was "a thorny issue that has plagued" the courts, ruled that as a matter of public policy, the birth of a healthy child cannot be the subject of damages. But he made it clear that the defendants will not go "scot-free" if they are responsible for the mistake.

The woman is suing Thomson Medical, its fertility centre and two embryologists for negligence.

In 2010, she went to its fertility centre for IVF treatment, but a stranger's sperm - instead of her husband's - was used to fertilise her extracted eggs. Thus the girl she gave birth to is biologically unrelated to her husband.

"Baby P" - who turned three on Tuesday - now lives in Beijing with her parents. The parties are not named to protect her identity.

The 38-year-old Singaporean, who gave up her job to be a full-time mother, is believed to be seeking more than $1 million for pain and suffering, medical costs, loss of income, upkeep for the baby and provisional damages for injuries on the baby's behalf.

But lawyers for Thomson Medical asked the court to first rule on whether it could be liable for the costs of raising the baby until she reached financial independence.

The upkeep, including schooling, is understood to form a major part of the damages being sought.

This is the first time that a Singapore court is being asked to decide on the extent of liability the defendants should face in a case of wrongful birth.

Senior Counsel Lok Vi Ming, arguing for the defendants, said that the claim for upkeep went against public policy, citing an English precedent where a judge ruled that it was "distasteful, if not morally offensive, in treating the birth of a healthy child as a matter for compensation".

But the woman's lawyer S. Palaniappan pointed to similar cases in Australia, which allowed compensation for the expense of raising the child.

Last month, Assistant Registrar Lee ruled in favour of the defendants, holding that the damages sought for the mix-up, such as for pain and suffering, were distinct from compensation for the child's upkeep.

He noted that the mother will experience the enjoyment of having a child, and "it would be impossible and indeed legally as well as morally wrong to divorce those benefits (whether tangible or otherwise) from the expenses for the upkeep of the child".

He explained that the mother is obliged to look after the baby and Thomson cannot be held responsible for her upkeep simply because of the mix-up. He also turned down the mother's claim for provisional damages since the baby did not suffer any injury, and any mistake happened before she existed.

The actual trial will come after the appeal, which is expected to be settled later this month.

A Thomson Fertility Centre spokesman said: "Although this decision is in our favour, we emphasise the fact that we... remain open to discussing with the plaintiff how this matter may be settled."

vijayan@sph.com.sg