A Singaporean woman who filed a lawsuit against Thomson Fertility Centre for negligence, after an in-vitro fertilisation (IVF) sperm mix-up caused her to conceive a child that was not biologically her husband’s, cannot claim “upkeep costs” for her child said the Court of Appeal.

The decision was made on 22 March, with the Court of Appeal rejecting the woman’s appeal against an earlier decision by the High Court, which ruled that she was not entitled to claim upkeep costs against Thomson Medical, its fertility centre, as well as two embryologists from the centre.

Woman sued fertility centre for IVF mix-up

In 2010, the plaintiff, a woman of Chinese ethnicity, and her Caucasian husband, welcomed their daughter, Baby P, after undergoing IVF treatment at Thomson Fertility Centre. However, the noticeable differences in Baby P’s skin tone and hair colour from their own prompted the couple to proceed with a DNA test.

The test revealed that Baby P had the woman’s genetic make-up, but not her husband’s. Further investigation revealed a mix-up, causing that the woman’s egg to be fertilised with the sperm of an unknown Indian donor during the IVF procedure, instead of her husband’s.

The woman sued Thomson Medical and three other respondents in 2012 for damages and sought upkeep costs for the child. While the defendants admitted liability for the incident, the High Court disallowed the claim in 2015, citing ”cogent policy considerations” against finding liability for upkeep of a healthy child, adding that the birth of a healthy child was considered a blessing.

Appeal for claim of upkeep costs dismissed by court

The couple then appealed to the Court of Appeal against the ruling made by the High Court.

However, the Court of Appeal, comprising Chief Justice Sundaresh Menon, Judges of Appeal Chao Hick Tin, Andrew Phang, Tay Yong Kwang and Justice Steven Chong, upheld the decision of the High Court, ruling that it would be against public policy.

"The law views the responsibilities of parenthood as obligations of a legal and moral character which arise in relation to the birth of new life; these obligations are incapable of valuation as 'loss' in any meaningful sense and cannot be the subject of a claim for damages,” said the court.

"Given that the Appellant and her husband have accepted Baby P as their own (and assumed the status of parents), they must be taken to have accepted the responsibility of maintaining Baby P (financially and in all other respects)," the court further explained.

Couple suffered loss of “genetic affinity”

However, the Court found that the couple had suffered a loss of “genetic affinity” which has resulted in social stigma as well as chagrin for the family.

"In the circumstances, the Court recognises that the Appellant's desire to have a child of her own, with her Husband, is a desire that is a basic human impulse, and its loss is keenly and deeply felt,” the court said. "The ordinary human experience is that parents and children are bound by ties of blood and this fact of biological experience - heredity - carries deep socio-cultural significance.”

"And when, as in the present case, a person has been denied this experience due to the negligence of others then she has lost something of profound significance and has suffered a serious wrong,” the court continued.

"This loss of 'affinity' can also result in social stigma and embarrassment arising out of the misperceptions of others, as was the case here."

While the Court has considered that the claims should be set at 30% of the upkeep costs of raising Baby P, it has said that the amount of damages awarded would be left to the High Court to decide. MIMS

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