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Australian couple sue IVF doctor after the 'wrongful birth' of twins

24 September 2007
Appeared in BioNews 426

An Australian couple are suing their gynaecologist for medical negligence involving an IVF procedure in 2003 that resulted in the birth of twins. The birth mother expressed a wish to have only one embryo implanted, but instead two embryos were implanted resulting in the birth of twin baby girls who are now three-years-old. The couple are suing Dr Sydney Robert Armellin, the specialist consultant at the Canberra Fertility Clinic, for $400,000 to help compensate for the cost of raising one of the daughters, testifying that they have suffered significant emotional damage from the strains of raising twins. Closing arguments for the unprecedented Australian case were heard before Justice Annabelle Bennett in the Australian Capital Territory Supreme Court last week; the case has now been adjourned until October.

Medical ethicist, Dr Leslie Cannold, identifies this case as a collision of traditional concepts of children and family with reproductive choice: '...sometimes we don't want to have a child - healthy or not'. While there is a precedent of compensation for negligence which results in an unhealthy baby, so-called 'wrongful birth' arguments, often involving IVF spermegg or embryo mix-ups, cause legal discomfort. In 2003, however, an Australian couple were awarded compensation for a pregnancy following a botched sterilisation procedure because they had not been warned of this risk.

Dr Armellin has admitted that the birth mother requested one embryo to be implanted minutes before the procedure and had assumed the embryologist and technicians were also informed. The couple signed a consent form to have up to two embryos implanted and were told that patients may decide the precise number on the day. Dr Armellin's barrister, Kim Burke, has argued that a doctor's duty does not include prevention of multiple births and these twins resulted from a flawed communication procedure at the clinic for which he is not responsible. Burke further argued that it is 'a legal nonsense' to claim that only half of a pregnancy is damaging.

The couple's barrister, Hugh Marshall SC, argued that whilst there is a one in 1000 risk of identical twins with single-embryo implantation, two-embryo implantation increases the risk of twins from 0.1 per cent to 20 per cent and the couple conscientiously considered and requested a procedure involving the lower risk.

IVF doctor failed to ensure duty of care, court hear
ABC News |  20 September 2007
IVF, twins and the law
The Age |  20 September 2007
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