A Singaporean lady and her husband have filed a lawsuit against Thomson Fertility Centre for negligence, after the couple’s baby girl, conceived via in-vitro fertilisation (IVF) treatment, was found to be biologically related to the woman – but not to her Caucasian husband.

In 2007, the couple, who were in their early 30s and married for ten years, first sought for in-vitro fertilisation (IVF) treatment at Thomson Fertility Centre on the advice of their obstetrician. The IVF treatment involved retrieval of the woman’s eggs to be fertilised with her husband’s sperm in a laboratory, which were then transferred back into her uterus. They had a son, and returned to the centre in 2010 for the same fertility treatment after deciding they wanted a second child.

When the baby was born in October that same year, the couple became suspicious after noticing that their newborn’s complexion was markedly distinct from theirs, and were told that the child has Group-B blood while they had blood types A and O.

Their fears were confirmed when a DNA test revealed that the baby had the woman’s genetic make-up, but not her husband’s.

Negligence by fertility centre led to a genetic mix-up

An inquiry revealed that lapses in procedure and human error resulted in a mistake where the embryos, which were transferred into the lady’s uterus, being wrongly fertilised with a stranger’s sperm instead of her husband’s.

According to Deputy Public Prosecutor Charlene Tay, guidelines issued by the European Society of Human Reproduction and Embryology states that pipettes used for processing semen specimens should be used solely for one procedure, should be disposed of immediately after use should never be used for more than one patient.

However, it was revealed by Health Minister Khaw Boon Wan that the pipette used at the Thomson Fertility Centre in this case was reused, not discarded, and that the embryologist was simultaneously processing specimens from two individuals at the same workstation. The centre also failed to have a second person to counter-check and ensure that the respective specimens were placed in the correct receptacles.

“Severe and irreversible consequences have ensued from the lapses,” said Tay at the time. “It has resulted in the birth of a child who is not the genetic child of both the intended parents, but who has the genetic material of the intended mother and the genetic material of an unknown father.”

“This is a blunder that will be likely to haunt the family for life, and will have a long-term psychological impact on them,” she added, while arguing for the maximum fine and stressing that the defendant had to observe obligations to implement appropriate practices to prevent from future breaches.

Debating the rights of Baby P

The National Medical Ethics Committee (NMEC) was consulted regarding the rights of the baby’s biological father. The committee, chaired by Dr Yeoh Swee Choo, noted that the Thomson Medical Centre had a duty to all parties involved, however, acknowledged that other complications may arise when fulfilling those responsibilities.

The NEMC advised that priority be given to protect the best interest of the baby, known as Baby P, and recommended that “information on the mix-up as well as any other that might lead to identifying the child should not be conveyed to the unintended genetic father without prior consent from the biological mother and her husband.”

Apologising for the distress caused, Mr Allan Yeo, president of Thomson Medical also said, “We have since strengthened our governance and have put in place more robust protocol to ensure that we fully comply with the regulatory requirements.”

District Judge Sarjit Singh stated that the maximum fine of S$20,000 was in order, as the clinic’s unsuitable practices have resulted in serious consequences. In addition, the Health Ministry suspended all new assisted reproductive activities at the centre for eight months from November 2010 to June 2011.

Following this incident, the ministry also ordered all centres providing assisted reproduction treatments to strictly comply to appropriate procedures.

Justice: “Baby should not grow up thinking that her very existence was a mistake”

In 2012, Baby P’s mother filed another lawsuit against the fertility centre, seeking damages for various categories of claims including for the child’s upkeep until she is financially independent.

While the defendants admitted liability for the incident, they asked the High Court to issue a ruling “of whether Singapore law allows damages to be awarded for the upkeep of a healthy child.”

In January 2015, Justice Choo Han Teck stated that there were “cogent policy considerations” against finding liability for upkeep and disallowed the claim. However, the woman appealed.

In August 2015, Chief Justice Sundaresh Menon stressed that the appeal was based on the “unanticipated consequence that the parents have to deal with, without choice" and had nothing to do with the value of the child.

Senior Counsel Lok Vi Ming, on behalf of the defendants, argued that the woman had wanted a child of her own and anticipated incurring expenses to raise one, adding that the cost of raising the child was not a loss that was due to the centre’s mix up.

However, the woman’s lawyer, N. Sreenivasan, argued that “her loss was the unwanted pregnancy in which she gave birth to a child with a stranger's DNA, when she and her husband had contemplated raising only a child who was biologically their own.”

The case was adjourned until 6 October, during which it was debated if upkeep costs could be viewed as an appropriate compensation for emotional distress towards the family. However, the three-hour hearing ended without conclusion.  MIMS

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