Court awards mother damages for loss of genetic affinity

After parents made sure that their bundle of joy is blessed with ten toes and ten fingers, family members usually make turns to opine about whose nose, eyes or hair the newcomer has inherited. But what if the new baby does not resemble any parent, siblings or other family members at all?

This was the situation faced by a couple undergoing In-Vitro Fertilisation (IVF) for a second time at a Singaporean fertility clinic in ACB v Thomson Medical Pte Ltd and others [2017] SGCA. Baby “P”, a healthy baby girl that was born to a Chinese mother and a German father, had a much darker skin colour than her parents and older sibling and could her blood type not be reconciled with that of her parents.

On closer investigation it became clear that the ovum of the mother was fertilised with sperm of an unknown donor of Indian ethnicity, instead of the sperm of her husband.

Although not able to identify the particular act of negligence, Baby “P’s” mother instituted a claim based on the legal principle of res ipsa loquitur, which means that the mere occurrence of this type of accident is sufficient to imply negligence committed by the fertility clinic and its staff. However, proving that the clinic and its staff acted negligently was not the real issue, but the court’s challenge to determine the basis of the damages that needed to be awarded to Baby “P’s” mother.

In Donoghue v Stevenson [1932] AC 562 the court acknowledged that scientific advancement is increasingly making things possible that were unimaginable only a decade ago and that the law must “…adapt itself to the changing circumstances of life…” IVF is but one example of recent scientific developments that challenge our ethical beliefs and legal systems. Thus considering the kind of damages that Baby “P’s” mother suffered as a result of the mixed up sperm sample, it is important to distinguish between a woman wanting to conceive a baby as opposed to Baby “P’s” mother who wanted to conceive a child with her husband. In the first instance the sperm of any willing and able sperm donor would suffice, where Baby “P’s” mother specifically wanted to have a baby with the man she was married to. Baby “P’s” mother subsequently found herself a parent to baby that shares half her genetic material with a complete stranger!

In recognition of the legal right to not merely wanting to have a child, but to have a child with someone specific was confirmed in the English case of Leeds Teaching Hospitals NHS Trust v Mr A and others [2003] EXHC 259 (QB)in which the court said that:

  …any wrongful action by Mr A would accordingly seek damages, not on the          basis that a conception took place, but rather that this conception took place… [t]o use deliberatively provocative language, the ‘harm’ would consist not in the conception and subsequent birth of a child to the woman who did not wish to become a mother, but in the conception and birth of these children to a woman who wished to become a mother to different children…

In the American case of Andrews v Keltz 15 Misc 3d 940 (2007) in which a mother’s egg was also inseminated with the sperm of a stranger the court acknowledged that due to the negligence of the fertility clinic and its staff, the mother ended up with a child she never wanted or planned for. The court subsequently found that the essence of any wrongful conception claim is that the Plaintiff never planned to have this child which resulted from the use of the wrong genetic material, but instead desired to have a child with a person with whom she shared a genetic kinship. This judgement confirmed similar findings in Weintraub v Brown 98 AD 2d 339 (1983) & O’Toole v Greenberg 477 NE 2d 445 (1985).

To determine whether a mother suffered any damages as a result of so-called loss of genetic kinship one must first determine what genetic kinship is.

William Donald Hamilton (1 August 1936 – 7 March 2000) an English evolutionary biologist actually devised a mathematical formula – now called Hamilton’s rule – that specifies the conditions under which reproductive altruism evolves: r x B > C (where B is the benefit (in number of offspring equivalents) gained by the recipient of the altruism, C is the cost (in number of offspring equivalents) suffered by the donor while undertaking the altruistic behaviour, and r is the genetic relatedness of the altruist to the beneficiary. This formula effectively confirms the evolutionary and biological nature and importance of genetic relatedness and kinship.

The legal twist on this scientific formula is that by reason of the fertility clinic’s negligence, Baby “P’s” mother suffered a severe dislocation of her reproductive plans that is constituted principally by the fracture of biological parenthood. In an article by Leon R Krass entitled: Life, Liberty and the Defences of Dignity: The Challenge for Bioethics (Encounter Books, 2002) he eloquently describes that:

…the desire to have a child of one’s own is a couple’s desire to embody, out of the conjugal union of their separate bodies, a child who is flesh of their separate flesh made one. This archaic language may sound quint, but…this is precisely what is being celebrated by people who rejoice at the birth of Louis Brown [the first baby born via IVF], whether they would articulate it this way or not. Mr. and Mrs. Brown, by the birth of their daughter, embody themselves in another, and thus fulfil this aspect of their separate sexual natures and of their married life together…

The Singaporean court in the case of Baby “P” concluded that the loss suffered by her mother is a culmination of biological, social, ethical and historical factors, many of which have to do with aspects of human relationships and personhood that are fundamental parts of the human condition, the role of genetic relatedness, physical resemblance, race, culture and the importance of familial relations – and became the first court in the world to award a mother damages purely on the basis of her loss of her genetic affinity with her baby.

This case opened the door for other courts to also recognise a mother’s interest in maintaining the integrity of her reproductive plans and specifically her decision to have a child with her husband to maintain an intergenerational genetic link and to preserve “genetic affinity”.

What happened with her husband’s sperm? That’s perhaps an article for another time 😉

By
Marietjie Botes
marietjie@dyason.co.za

@marietj72675939 (Biotech Law)