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Australian parents launch 'wrongful birth' claim for negligent genetic testing

28 January 2008
Appeared in BioNews 442

A couple is suing the staff at an IVF clinic in Australia for negligently failing to detect a gene mutation responsible for a type of inherited cancer they had specifically undergone PGD testing to avoid. The legally unprecedented case could result in one of the highest medical damage values ever awarded by the Australian courts if it succeeds. The claim falls into the ethically thorny category of cases legally referred to as 'wrongful birth' claims in which the 'damage' claimed involves the birth of a child.

The writ alleges that their embryo was negligently implanted because the fertility specialists misread the genetic test results that indicated the selected embryo was indeed affected with the genetic mutation. The couple are claiming damages to cover a lifetime of medical expenses plus the cost of rearing an additional child (without the gene) they would not otherwise have had until scientists convinced them they could have a child without the genetic mutation. They are also claiming for emotional distress and pain.

The mother has a family history of the cancer and carriers have a 50 per cent chance of passing the gene mutation on to their children. The couple claim they would not have undergone IVF and, instead, would have adopted or chosen to not have children, if scientists had not assured them that they could select an embryo without the genetic disorder. Despite their efforts, three months following the birth of their son the couple were reportedly heartbroken to learn that he possesses the cancer gene mutation. The couple, who are reportedly too distressed to comment, have launched a claim in the Victorian County Court against Monash IVF, a Melbourne-based clinic, which is listed for a directions hearing on 31 March.

Through the IVF process the prospective mother created eight embryos. The PGD technique typically involves removing a cell from an eight-cell, three-day-old embryo and screening for single-mutation genetic disorders such as Huntington's disease, cystic fibrosis or, as in this case, a particular cancer. Two of her embryos were thought to not have the gene mutation and one was implanted, resulting in the birth of their son.

Due to the litigation actively before the court, Monash IVF cannot comment but fertility experts emphasise that no medical technique is perfect and Michael Chapman at IVF Australia attributes this situation to the significance of genetic counselling, suggesting two hour-long sessions for PGD candidates to ensure they understand the risks.

Telegraph editorialist Anita Quigley countered public criticism that the couple are ungrateful and think of babies as commodities arguing that they placed faith in medicine to protect the health of their future child by undergoing an extremely invasive, expensive and emotionally taxing medical procedure.

Embryos at risk of disease can pass clinic tests, parents warned
Sydney Morning Herald |  21 January 2008
IVF parents sue over alleged rogue gene
news.com.au |  21 January 2008
Pitter patter of genetic paranoia
news.com.au |  22 January 2008
30 November 2015 - by Antony Starza-Allen 
A woman is suing a fertility clinic in Australia for failing to detect that she was a carrier of a genetic mutation during pre-pregnancy testing, after her sons were later born with an inherited condition....
31 October 2011 - by Dr Lux Fatimathas 
Increasing numbers of Israeli children with birth defects are suing medical professionals for failing to detect abnormalities and allowing them to be born, says the New Scientist. The magazine reports that such is the Israeli Government's concern over the rise in 'wrongful life' lawsuits it has launched an investigation into the validity of the claims....
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