Forged IVF Consent Form Triggers Unique Breach of Contract Claim

Healthy children are a blessing and, even where their birth arises from a breach of contract, the costs of bringing them up cannot be recovered as compensation. The Court of Appeal made that point in the case of a father whose ex-partner gave birth to his daughter after forging his signature on an IVF consent form.

The ex-couple previously had a son after undergoing IVF treatment at a fertility clinic. Following that procedure, fertilised embryos were frozen in case they were needed in future. Following the breakdown of their relationship, an embryo was thawed after the mother forged the father’s signature on the form. She was subsequently implanted with the embryo and, in due course, gave birth to a healthy baby girl.

The father was unaware of what she had done until after she was pregnant. In those circumstances, he launched proceedings with a view to recovering the costs of bringing up his daughter to adulthood, but his claim was dismissed by a judge on public policy grounds.

In ruling on the father’s appeal against that decision, the Court found that the clinic had been under an absolute imperative to obtain his written consent to the embryo being thawed and implanted. The requirement for such consent was a cornerstone of the Human Fertilisation and Embryology Act 1990. The clinic had been duped by the mother, and had not been negligent, but the use of reasonable care provided it with no defence to the father’s claim.

In dismissing the appeal, however, the Court noted the impossibility of calculating the value to be attributed to the benefit of a healthy child, so as to set off such value against the financial burden of bringing up that child. The Court also observed that legal authorities on the issue are pervaded by a sense that it is morally unacceptable to regard a healthy child as a financial burden.