Biomedical Law and Ethics

• Publication year: 2017
• Published date: 01 December 2017
• Citation: (2017) 18 SAL Ann Rev 100
• Date: 01 December 2017
• Author: Tracey Evans CHAN LLB (Hons) (National University of Singapore), LLM (Harvard); Associate Professor, Faculty of Law, National University of Singapore. Prem Raj PRABAKARAN* BEng (Mechanical) (Hons) (National University of Singapore), LLB (Hons) (National University of Singapore), BCL (Oxon); District Judge, State Courts of Singapore.

Introduction

6.1 The year under review truly represents a landmark year for the field of biomedical law and ethics in Singapore. Two watershed judgments on the interests and rights of patients in assisted reproduction and medical practice generally were delivered by five-member panels of the Court of Appeal. These decisions were highly anticipated and certainly did not disappoint in the wealth of legal and policy analysis on fundamental issues. There were also four important decisions delivered by the Court of Three Judges in relation to professional discipline.1 These decisions discussed aspects relevant to liability (especially in relation to professional misconduct in the form of a doctor's failure to obtain informed consent), aggravating and mitigating factors in sentencing, as well as sentencing considerations in cases where a doctor had failed to obtain informed consent.

Loss of genetic affinity in assisted reproduction

6.2 The action in ACB v Thomson Medical Pte Ltd2 (“Thomson Medical”) involved wrongful fertilisation. The defendants had negligently fertilised the plaintiff's oocyte with the sperm of a third-party donor, and the resulting embryo led to the plaintiff's pregnancy. The mistake was suspected upon the birth of the child, Baby P, as the donor was of a different ethnic group from the putative parents. This was confirmed after a genetic blood test. The plaintiff sued the defendants for, in particular, the costs of maintaining Baby P till adulthood. In a wide ranging judgment that reviewed various

fundamental principles in tort law, the en banc Court of Appeal dismissed the claim for upkeep costs, but instead recognised a new head of damage in medical negligence termed “loss of genetic affinity”. In reaching this result, the court also dismissed an alternative claim for “loss of autonomy”.

6.3 The first important issue resolved in Thomson Medical involved a question of causation in the context of claims brought for wrongful birth, conception, or in this case, fertilisation. The trial judge reasoned that since the plaintiff was prepared to raise a healthy child by having recourse to in vitro fertilisation (“IVF”), she had suffered no financial loss upon the birth of Baby P, who was also healthy, albeit genetically different from the child they intended to conceive. The Court of Appeal rejected this argument, emphasising the unique identity of Baby P as a child that the plaintiff did not contemplate raising when she underwent the IVF procedures. The plaintiff was now put to the expense of raising this child.3 An alternative way of understanding the causation point is that any consideration of the subsequent conduct of the plaintiff and her husband in determining if there was consequential economic loss would impermissibly fetter the reproductive autonomy of the putative parents.4 They should not have to beget another child in order to demonstrate the actual consequential economic loss, just as it would be unreasonable to expect them to give up Baby P for adoption in order to mitigate that same loss.5

6.4 However, notwithstanding that causation was established, the court rejected the claim for upkeep costs after undertaking an admirably comprehensive review of the common law authorities on the issue. This was based on the public policy of preserving the integrity of parental duties, rather than a denial of their practical financial realities. The obligation to maintain one's child as an incident of parenthood is of moral worth, and hence cannot constitute legally cognisable loss compensable by damages.6 It would also be unprincipled to distinguish financial sacrifice from the other intangible sacrifices made by parents, the latter being incapable of valuation. The court summarised this idea in the following terms:7

Baby P is a holistic person who must be accepted as she is. If she is accepted, as we are gratified to observe she has been, then the Appellant must be taken to have simultaneously assumed the responsibility of maintaining her (financially and in all other respects).

Parenthood comprises an indivisible bundle of rights and obligations which cannot be peeled away and hived off à la carte. [emphasis in bold italics in original]

6.5 Secondly, as a corollary, the act of bringing a civil claim for such damages would undermine the integrity of the parent–child relationship. By arguing that the parent–child relationship amounts to a net loss, claimants would be incentivised to disparage the value of their child to maximise recovery, by minimising the notional sum that would offset the correlative benefits of raising the child. Allowing recovery of upkeep costs would also distort parental expectations for the child or lifestyle choices in order to obtain a larger award. The court therefore chose a bright line rule to disallow recovery for upkeep costs to prevent the personal interests of claimants from coming into conflict with their parental duties. Two possible exceptions to recovery were countenanced: a contractual warranty guaranteeing a particular reproductive outcome or a liquidated damages clause providing for an event of wrongful fertilisation.

6.6 Despite the clarity of the policy objections to awarding upkeep costs, the court further explored whether other novel heads of loss should be recognised in order to remedy the negligent conduct of the defendants. Otherwise, the plaintiff would be confined to damages for pain and suffering associated with the pregnancy, and the wasted costs of the IVF treatment, which the court thought poorly reflected the substance of the loss suffered. First, the court considered the notion of a loss of autonomy as a distinct head of loss, constituted here by defeating the expectations of the plaintiff for a child conceived with the gametes of her spouse. They rejected this as a general head of loss for the purposes of negligence. The notion of autonomy itself is contested, and it would result in unacceptable uncertainty over the proper bounds of legal protection. Further, the concept of damage in negligence emphasises remedies for objective detriment or tangible harms, rather than serve as a vindicatory tool for rights infringement. Finally, there is the danger of allowing circumvention of existing legal restrictions on recovery in negligence by reconceptualising the damage as one implicating some aspect of autonomy. This rejection of loss of autonomy as a general head of damage will have repercussions beyond reproductive medicine, and have an important influence on the implications of the decision in Hii Chii Kok v Ooi Peng Jin London Lucien8 (“Hii Chii Kok”), discussed below.9

6.7 The most significant impact of the decision in Thomson Medical is likely to be its recognition of a new head of damage: loss of genetic affinity, an interest articulated by Norton in his article, “Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages”,10 and approved of by the Court of Appeal. It is a shorthand for “all those ties which are partly the result of genetic relatedness and partly a result of the social significance which it carries”.11 While this interest connotes the socio-cultural significance of genetic relatedness to familial ties, the gist of the harm appears to be its impact on the reproductive autonomy of the putative parents: what the court described as “serious consequences that the disruption of the Appellant's reproductive plans had on her life”, which were “to maintain an intergenerational genetic link and to preserve ‘affinity’”.12 This legal recognition arguably also gives greater moral and social legitimacy to the interests of couples in seeking technological solutions to their infertility. Evaluations of the ethics of permitting access to the latest, experimental assisted reproductive technologies should take this new legal interest into account in determining where the risk–benefit calculus should lie13 – for example, in the Bioethics Advisory Committee's current ethical evaluation of mitochondrial genome replacement therapy to allow women suffering from various mitochondrial diseases the chance to bear genetically related children free from those diseases.14

6.8 Perhaps the most difficult aspect of the idea of genetic affinity is the court's decision to include the social and emotional impact of the loss of desired genetic relatedness on the plaintiff within this head of damage, in so far as it arose in response to social attitudes and reactions to Baby P's manifest physical differences arising from inherited genetic traits. This impact was brought home to the plaintiff through the socially awkward or distressing queries from family and members of the public on Baby P's different complexion.15 With respect, while this might represent the reality of social harms faced in certain situations of genetic mix-ups in IVF, one wonders why this aspect of a loss of genetic affinity was exempt from the normative expectations of the parent–child

relationship that had earlier immunised the defendants from much of the financial consequences of their reproductive negligence.16

6.9 Suppose a mixed couple of different ethnic ancestry suffered the same experience of reproductive negligence that fertilised the intending mother's oocytes with that of a stranger, albeit of the same ethnicity as her husband. Should any resulting social awkwardness or stigma constitute a cognisable harm in raising the resulting child, if they would have experienced similar reactions in any case? Or what if reproductive negligence introduced a genetic mutation from a third party resulting in a disability that would otherwise have been avoided? Should any resulting social stigma arising from public reactions to the disability, or social questioning on the source of the genetic mutation, be considered part of the resulting composite harm? These questions could arise in future with an expansive notion of a loss of genetic...