ARB v IVF Hammersmith v R  EWCA Civ 2803
In the recent English case of ARB v IVF Hammersmith v R, an ex-partner forged the appellant’s signature. Proceeding on the basis of that signature, the respondent clinic thawed and implanted into the ex-partner an embryo containing the appellant’s gametes. The respondent breached the contract with the appellant in that it failed to obtain the appellant’s written consent.
In the Court of Appeal, the appellant lost his claim against the respondent for the cost of the upbringing of his healthy child whom his ex-partner gave birth to as a result of the respondent’s breach of contract. The Court of Appeal held that:
- The respondent’s breach of contract took place in the absence of a liquidated damages clause in the contract. The respondent’s obligation to pay damages was a secondary obligation that arose by implication of the common law. There was nothing in the contract which adjusted the approach of the common law which had to include legal policy; and
- The legal policy which barred the recovery of damages for the cost of the upbringing of a healthy child in tortious claims applied equally to the appellant’s breach of contract claim to recover damages for the cost of the upbringing of his healthy child. The impossibility of calculating the loss given the benefits and burdens of bringing up a healthy child was core to this legal policy. In addition, it was morally unacceptable to regard a child as a financial liability.
Click here for a summary of the judgment of the Court of Appeal. The application for permission to appeal to the Supreme Court was refused.