LAW AND SOCIETY
An Unwanted Child? Awards for Damages in the Tort of Negligence Bernice Tan, University College London
Introduction
Denying Upkeep Costs
‘I wanted a child… but not this child. I wanted a child my husband and I could call our own.’ This was the essence of the Appellant’s case in ACB v Thomson Medical Pte Ltd (“ACB”).1
In upholding the decision that upkeep costs were not recoverable, the SCA rejected the trial judge’s reasoning on causation, choosing to focus on two main public policy reasons. Firstly, the obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally cognisable head of loss. Secondly, that to recognise upkeep costs would be fundamentally inconsistent with the nature of the parent-child relationship and would place the Appellant in a position where her personal interests as a litigant would conflict with her duties as a parent.5
ACB involved the fertilisation of the appellant’s ovum with an unknown Indian donor’s sperm instead of sperm from her own German husband in a negligent in-vitro fertilisation process, resulting in her daughter, Baby P, having distinctly different physical features from the parents. In the High Court, Choo Han Teck J held that the Appellant was not entitled to bring a claim for the cost of raising Baby P (“upkeep costs”) since this was not an ‘unwanted birth’.2 Yet, in a potentially ground-breaking judgment, the Court of Appeal (“SCA”) in 2017 upheld the High Court’s decision to reject the claim for upkeep costs, but also took a step further—after examining but rejecting a claim for the loss of autonomy suffered by the Appellant, they recognised a new head of damages under the loss of genetic affinity for the first time in the history of claims for wrongful births. Cases of medical negligence leading to unsuccessful sterilisation have previously occurred in other common law jurisdictions in the United Kingdom (“UK”) and Australia, mostly notably in the cases of McFarlane v Tayside Health Board3 and Cattanach v Melchior4 respectively. However, it is the first time that loss of genetic affinity has been recognised as a recoverable head of damage in any jurisdiction, and this decision could potentially influence other common law jurisdictions such as the UK and Australia in further cases of ‘wrongful fertilisation’. This article will therefore examine the SCA’s reasoning of the three different heads of damages (upkeep costs, loss of autonomy and loss of genetic affinity) and shed some light on how other common law jurisdictions have previously approached these issues, or with the new head of loss of genetic affinity, how these jurisdictions may potentially respond in the future.
A. The Issue of Causation Although the SCA reached the same conclusion as the High Court on rejecting the claim for upkeep costs, their reasoning on causation has been regarded as a ‘curious aspect of the decision’.6 The SCA asserted that the purpose for which the upkeep costs were incurred was different—while the Appellant would have incurred upkeep costs in any event, they would have been for a different purpose, that is, to raise a different child that was genetically related to both parents. Such an analysis has been criticised for taking an unorthodox approach inconsistent with the common law’s ‘but for’ test, which never previously had any regard to the ‘purpose’ of the loss suffered by claimants.7 While it may seem over-simplistic to suggest (as the High Court judge did)8 that the upkeep costs would be incurred anyway, it should be noted that the focus in the claim for upkeep costs is the financial costs of raising the child. Hence, the purpose of the loss suffered in the orthodox approach of causation would only matter if it could be contended that the upkeep costs for Baby P would be different due to his/her different genetic traits. Nevertheless, putting aside the issue of causation, the SCA’s public policy reasons provide more convincing grounds for rejecting the claim on upkeep costs. 5
ibid [86].
2 ACB v Thomson Medical Pte Ltd [2014] SGHC 36; [2014] 2 SLR 990.
6 Jordan English and Mohammud Jaamae Hafeez-Baig, ‘Recovery of Upkeep Costs, Claims for Loss of Autonomy and Loss of Genetic Affinity: Fertile Ground for Development?’ (2018) 41(3) Melbourne University Law Review 1360.
3
McFarlane v Tayside Health Board [1999] 3 WLR 1301.
7
ibid 1375.
4
Cattanach v Melchior (2003) 199 ALR 131.
8
(n 2).
1
[2017] SGCA 20; [2017] 1 SLR 918.
97