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Why are there so few negligence claims arising from ‘assisted reproductive technology’ treatment?

Assisted Reproductive Procedures

Assisted Reproductive Technology (ART) is no longer new or novel in the field of medicine. However claims in relation to problems arising from ART procedures remain relatively uncommon. It may be there that there are few claims to be made. But it may also be that such claims potentially challenge the boundaries and framework of the existing law and community expectations. Wrongful birth and wrongful life claims have always been very controversial and emotionally charged claims. Notions of the sanctity of life, the value of life with disability and existence versus non-existence have permeated the debate and contributed to the Court’s decisions. Advances in medical technology have created the potential for new errors to occur in the conception of new life and a number of commentators have raised the question of whether a remedy will be available to those affected by such errors.

One would generally expect, in accordance with the principles of tort law, that where negligence has occurred, the wrongdoer will be held accountable and the injured party will be entitled to compensation. However, whether or not a claim in negligence will be viable in some of the instances of negligence in ART is not necessarily as straight-forward as it may at first appear.

There have been successful claims relating to ART in Australia. In G & M v Armellin, the parents of twins conceived via IVF successfully sued their obstetrician for implanting two embryos when they had requested only one embryo be transferred. The mother received damages for the extra pain and suffering caused by the pregnancy and the couple received damages for the cost of raising the second child.

However, there is considerable community and professional debate as to whether the birth of a healthy child should be compensable. Whilst the common law as espoused in Cattanach v Melchior allows the parents of an unplanned child to claim the costs of raising that child, the legislatures in many Australian states have precluded such claims. For example, in NSW s 71 of the Civil Liability Act provides that the court cannot award damages for economic loss for the costs associated with rearing or maintaining a child other than the additional costs associated with a child suffering a disability.

However, the issues extend beyond what damage should be payable. Other fact scenarios may not be as easily configured within the law as it stands. Take for example the facts in a US case, Fasano v Rogers. That was not a civil claim for damages but involved issues of custody and parental rights.

Briefly, the case involved an Anglo-Saxon couple and an African-American couple who both attended the same fertility clinic. Due to a mix-up in the clinic the Anglo-Saxon female was implanted with one of her embryos and one belonging to the African American couple. The Anglo Saxon woman carried to term, gave birth to and raised for the first four months, twins – one white and one black. Ultimately, after a drawn out court battle, the African American twin was returned to its genetic parents at almost 1½ years of age. Unsurprisingly the whole ordeal caused considerable anguish to both couples and no doubt, to some extent, to the little boy who was ultimately removed from the parents he knew and placed with his genetic parents.

As mentioned above, in NSW, damages are not available for the cost of raising a healthy child born following the negligence of a medical practitioner or health care professional, or for loss of income. However, an entitlement to damages for general damages remains. Therefore, there would seemingly be a viable claim for the birth mother particularly given the likely extent of the mental harm.

Whether the birth father and genetic parents would have a claim for pure mental harm is less easily ascertained. In NSW, damages for pure mental harm are not available unless the plaintiff witnessed the “victim” being killed, injured or put in peril or the plaintiff is a close family member of the victim. This raises issues of who is the victim. It might also raise issues as to who are the parents of the child.

In accordance with Harriton v Stephens the child itself is not entitled to bring a claim founded on the notion that they should have not been born (known as a claim for “wrongful life”). However, could there be a claim by the child for mental harm? It’s a complex question. The claim differs from claims such as Harriton or Waller in that the assertion is not that he should not have been born but that he should have been born to his genetic mother.

The distinction is subtle but perhaps pertinent. It would be distinguishable from cases such as Harriton where the claim was that but for the doctor’s negligence the pregnancy which gave rise to the plaintiff would have been terminated. Whilst the allegation bears more resemblance to the claim in Waller, which alleged but for the negligence the pregnancy would not have been conceived at all, it is still distinguishable on the grounds that there is no allegation in this case that there was any abnormality in the plaintiff which would result in a desire for that plaintiff not to have been given life – the allegation is that but for the negligence of the clinic, the plaintiff would have been born to his genetic parents and been spared the mental anguish of being raised for some time by his birth parents before being removed from those parents and his “twin”.

Is this then a claim for pure mental harm? If so, who is the victim, is it the birth mother? And if so, does the child fall within the definition of a close family member? Does the answer depend on in whose care the child is when the claim is initiated?

Quantifying such a claim might also be difficult; as a small child it might be that the distress is transient and is quickly forgotten once settled with his genetic family. However, it is also quite plausible that knowledge of the event may continue to cause the child anguish well into his adult years, in a manner not dissimilar to many adopted children.

The formulation of such claims may not be a straightforward task and may require some innovation in approach. There certainly seems to be the possibility that the law has failed to keep pace with medical advances and is ill-equipped at present to hold the wrongdoer to account in circumstances where the community would expect that it would.  Ultimately it may take the litigation of such claims in the Courts and / or legislative intervention to clarify the standing of such claims and ensure the law develops to appropriately encompass the advances in medicine and technology that give rise to these claims.

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