ACB v Thomson Medical Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 15 January 2015
• Date: 15 January 2015
• Docket Number: Suit No 467 of 2012 (Summons No 4264 of 2014)
• Court: High Court (Singapore)

ACB

Plaintiff

and

Thomson Medical Pte Ltd and others

Defendant

[2015] SGHC 9

Choo Han Teck J

Suit No 467 of 2012 (Summons No 4264 of 2014)

High Court

Contract—Breach—Baby conceived after mix-up in IVF procedure—Whether plaintiff entitled to cost of upkeep of child

Damages—Measure of damages —Baby conceived after mix-up in IVF procedure—Whether plaintiff entitled to cost of upkeep of child

Tort—Negligence—Baby conceived after mix-up in IVF procedure—Whether plaintiff entitled to cost of upkeep of child

The plaintiff was a Singaporean woman of Chinese descent married to a German of Caucasian descent. The first defendant, Thomson Medical Pte Ltd was a private hospital. It was approved by the Ministry of Health to provide the in-vitro fertilisation (‘IVF’) procedure to couples who wish to conceive. The second defendant, Thomson Fertility Centre Pte Ltd, was a fertility clinic wholly owned by the first defendant and located within the first defendant's premises. The third defendant, Dr Eleanor Quah, was a senior embryologist with the second defendant. The fourth defendant, Dr Chia Choy May was the chief embryologist with the second defendant.

In 2009, the couple went for IVF at the second defendant. In October 2010, the plaintiff delivered a daughter (named ‘Baby P’ in this action). When the IVF procedure was carried out in respect of Baby P, by mistake the plaintiff's egg was fertilised with the sperm of a third party Indian male (‘the donor’) instead of the sperm of the plaintiff's husband. The third defendant was the embryologist who was responsible for (a) the collection and storage of the bottle containing the semen as being that of the plaintiff's husband; (b) verifying the details on the bottle containing the semen as being that of the plaintiff's husband; and (c) fertilising the plaintiff's egg with her husband's sperm. The fourth defendant was the third defendant's supervisor.

The couple later discovered the mistake in the IVF procedure when they found that Baby P's skin tone and hair colour was different from that of the couple and their son and she also had a blood type that did not match those of the couple. The plaintiff sued the defendants in the tort of negligence. The plaintiff also sued the third defendant for breach of contract in the alternative as both of them entered into a contract. The contract included a promise to fertilise the plaintiff's egg with her husband's sperm. The plaintiff's relief included a claim for Baby P's upkeep. An interlocutory judgment was entered against the defendants by consent with damages to be assessed and costs and interest reserved to the judge or registrar.

The plaintiff made the following arguments. First, had the plaintiff been told about the mix-up early, she would have been able to terminate the pregnancy, but once that opportunity passed, the defendants had to contemplate that someone would have been obliged to bring up the baby. Second, the decision of the majority on the High Court of Australia decision in Cattanach v Melchior(2003) 215 CLR 1 (‘Cattanach’) ought to be followed, whereas the decision of the majority in the House of Lords in Mc Farlane v Tayside Health Board[2000] 2 AC 59 (‘Mc Farlane’) that formed the opposite view from the majority in Cattanach ought not to be followed. Third, not allowing the upkeep claim would deprive the plaintiff of a remedy and it was reprehensible to provide immunity to the defendants. Fourth, the upkeep claim was not remote in the plaintiff's alternative course of action under breach of contract as the upkeep claim would have been within the third defendant's contemplation at the time when they entered into the contract.

Held, dismissing the claim for Baby P's upkeep:

(1) The plaintiff's submission that the defendants should bear the entire cost of maintaining a healthy child simply because she missed the opportunity to abort Baby P was a mere afterthought as the plaintiff did not even plead her missed opportunity to abort Baby P. In any case, even if this submission was genuine and not a mere afterthought, it had no merits. Allowing the plaintiff to claim for the lost opportunity to abort was going beyond what should constitute reasonable restitution for the wrong done: at [14] .

(2) Both Cattanach and Mc Farlane concerned claims by parent (s) for the expenses of bringing up a child conceived after the mother was negligently advised that the sterilisation procedure was complete and no contraception was required. These were referred to as ‘unwanted birth’ cases. But there was a crucial difference between those cases and the present application: Baby P was not an unwanted birth in the sense that the plaintiff mother did not want to have a Baby at all. It could not be said that the plaintiff and her husband were not contemplating having to expend money to bring up a child: at [15] .

[Observation: The issue of whether an upkeep claim would be allowed for wrongful birth cases was a contentious one as there was a divergence of views expressed. It might be the case that legislative intervention was required. There were cogent policy considerations against finding liability for upkeep: at [16] .]

ACB v Thomson Medical Pte Ltd [2014] 2 SLR 990 (refd)

A v A Health & Social Services Trust [2010] NIQB 108 (refd)

Bevilacqua v Altenkirk 2004 BCSC 945 (refd)

Boone v Mullendore 416 So 2 d 718 (1982) (refd)

Byrne v Ryan [2009] 4 IR 542 (refd)

Cattanach v Melchior (2003) 215 CLR 1 (refd)

Chaffee v Seslar 786 N E 2 d 705 (2003) (refd)

G and M v Sydney Robert Armellin [2008] ACTSC 68 (refd)

Mc Farlane v Tayside Health Board [2000] 2 AC 59 (refd)

Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 (refd)

Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 (refd)

Rouse v Wesley 196 Mich App 624 (1992) (refd)

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR (R) 100; [2007] 4 SLR 100 (refd)

Waller v James [2013] NSWSC 497 (refd)

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 33 r 2

Termination of Pregnancy Act (Cap 324, 1985 Rev Ed)

Women's Charter (Cap 353, 2009 Rev Ed) s 70 (1)

Civil Liability Act 2003 (Qld) ss 49 A, 49 B

N Sreenivasan SC and Palaniappan Sundararaj (Straits Law Practice LLC) for theplaintiff

Lok Vi Ming SC, Audrey Chiang Ju Hua, Calvin Lim and Nerissa Tan (Rodyk & Davidson LLP) for the defendants.

Judgment reserved.

Choo Han Teck J

1 The plaintiff is a Singaporean woman of Chinese descent married to a German of Caucasian descent. The first defendant, Thomson Medical Pte Ltd is a private hospital. It was approved by the Ministry of...