The man, named as ARB in court documents, is the father of two children born following fertility treatment in 2008 and 2011. He alleged that his partner, R – with whom he successfully underwent IVF in 2008 – had forged his signature on the consent forms required for a second treatment, after their relationship had broken down.
The couple had stored embryos with IVF Hammersmith, which ARB claimed were later thawed and used without his valid consent, leading to the birth of their second child. His 'seven figures' claim for damages for the upkeep of the second child was brought in contract against the clinic, which in turn sought an indemnity in the tort of deceit from R in the event that ARB's claim succeeded.
In his judgment, Mr Justice Jay held that although the clinic had exercised reasonable care in obtaining ARB's written consent, it was nevertheless under a strict contractual obligation not to proceed with embryo thawing and implantation without valid consent from both parties.
However, despite finding that the man's signature had probably been forged and that the clinic was in breach of its strict obligations, the judge rejected ARB's claim for legal policy reasons. Following case law that prevents parents from receiving damages for the costs of raising a healthy child, even if negligence is proven, he said:
'Whatever my personal response to this extraordinary case, acting in obedience with clear authority and principle compels me to uphold the clinic's submission that legal policy precludes all of ARB's pleaded claims.'
Expressing some unease with the outcome, Justice Jay said: 'Although he has lost this case, my judgment must be seen as a complete personal and moral vindication for ARB. The same, of course, cannot be said for R.'
Speaking after the ruling, the father involved in the case said that it 'never been about money' but had been about 'justice'. Jude Fleming, the chief operating officer of IVF Hammersmith, said that the clinic had changed its consent practices since the incident so that it would not happen again.
Representing the clinic, James Lawford Davies of Hempsons solicitors said: 'Clinics cannot presume that all their patients might be dishonest, but the case highlights the importance of having systems in place to ensure that both partners continue to agree to pursue treatment together, right up until the moment of transfer.'