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Published online by Cambridge University Press: 14 October 2019
Mistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where the claimants are the parents of the resulting, healthy, child. Drawing on the analogous tort of wrongful pregnancy, the paper provides a vindicatory account of the case of Rees v Darlington Memorial Hospital, and argues that Rees signposts the correct approach for tortious claims arising from mistakes in assisted human reproduction. It is argued that while the law should not compensate ‘loss’ flowing from the birth of a child, parents should be entitled to an award of damages to vindicate their right to reproductive autonomy. The paper explores vindication of the right to reproductive autonomy through the tort of negligence, but argues that vindication may be more effectively achieved through the creation of a separate tort which is actionable per se, strict liability, and expressly focused on vindication rather than compensation.
1 Assisted reproduction means all forms of reproduction that involve the scientific manipulation of human eggs, sperm and embryos. The techniques centrally in focus in this paper are in vitro fertilisation, cryopreservation (freezing) of eggs, sperm and embryos, and egg, sperm and embryo donation. See definition of assisted reproduction in Zegers-Hochschild, F et al. ‘The International Committee for the Monitoring of Assisted Reproductive Technology (ICMART) and the World Health Organisation (WHO) Revised Glossary on ART Terminology, 2009’ (2009) 24(11) Human Reproduction 2683CrossRefGoogle ScholarPubMed.
2 The public law focus of this scholarship can be seen in edited volumes such as Horsey, K and Biggs, HHuman Fertilisation and Embryology: Reproducing Regulation (London: Routledge, 2007)Google Scholar and Horsey, K (ed) Revisiting the Regulation of Human Fertilisation and Embryology (London: Routledge, 2015)CrossRefGoogle Scholar. In the former there are no chapters that address private law liabilities, in the latter there is one chapter which does so. See also Jackson, ERegulating Reproduction (Oxford: Hart Publishing, 2001)Google Scholar; Brazier, M ‘Regulating the reproduction business?’ (1999) 7 Medical Law Review 166CrossRefGoogle ScholarPubMed.
3 Blackburn-Starza notes that little academic attention is devoted to this subject: A Blackburn-Starza ‘Compensating reproductive harms in the regulation of twenty-first century assisted conception’ in Horsey, above n 2. Notable exceptions, other than Blackburn-Starza, include various works by Nicolette Priaux, such as Priaulx, N ‘Reproducing the properties of harms that matter: the normative life of the damage concept in negligence’ (2017) 5(1) Journal of Medical Law and Ethics 17CrossRefGoogle Scholar, and Priaulx, N ‘Managing novel reproductive injuries in the law of tort: the curious case of destroyed sperm’ (2010) 17(1) European Journal of Health Law 81CrossRefGoogle ScholarPubMed. Note also the separate debate in respect of the scope of the duty of care in the context of genetic sequencing technologies. See for example Chico, VGenomic Negligence: An Interest in Autonomy as the Basis for Novel Negligence Claims Generated by Genetic Technology (Routledge Cavendish, 2011)CrossRefGoogle Scholar; Mitchell, C et al. ‘Exploring the potential duty of care in clinical genomics under UK law’ (2017) 17(3) Medical Law International 158CrossRefGoogle ScholarPubMed.
4 See for example the UK's Human Fertilisation and Embryology Act 1990, and Human Fertilisation and Embryology Act 2008.
5 The word ‘mistake’ is used in this paper as a generic term to describe an incident where the assisted reproductive treatment does not occur as intended. It does not necessarily connote negligence or carelessness on the part of the person or persons responsible.
6 This paper does not deal with the law of contract. While it is acknowledged that the law of contract is relevant to such disputes – given that fertility treatment common takes place within a private healthcare context – the contractual aspect is beyond the scope of this paper.
7 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.
8 This paper assumes that the remedy in such cases is an award of damages. In this, as in many contexts, damages may seem inadequate, but in reality they constitute the best tool available to a court.
9 Shaw v Kovak [2017] EWCA Civ 1028.
10 McFarlane v Tayside Health Authority [2000] 2 AC 59.
11 Rees v Darlington Memorial Hospital, above n 7.
12 Adverse Incidents in Fertility Clinics: Lessons to Learn January – December 2015 (Human Fertilisation and Embryology Authority, October 2016).
13 Where such cases have been litigated, it has usually been for the purposes of establishing legal parentage. In Leeds Teaching Hospital v Mr A [2003] EWHC 259 (QB), for example, two couples – Mr and Mrs A and Mr and Mrs B – sought IVF treatment using their own eggs and sperm. Rather than fertilising Mrs A's eggs with Mr A's sperm, they mistakenly fertilised them with Mr B's sperm. Mrs A carried the twins to term, but they were the biological children of Mr B, rather than of her husband, Mr A. Mr and Mrs A were white, but the twins were of mixed race. See also the New York case of Andrews v Keltz (2007) NY Slip Op 27139.
14 A (A Minor) and B (A Minor) v A Health and Social Services Trust [2010] NIQB 108 (A and B). This decision was upheld on appeal, in a briefly reasoned judgment: A (A Minor) and B (A Minor) v A Health and Social Services Trust [2011] NICA 28.
15 Plaintiff, rather than claimant, is the term used in Northern Ireland.
16 The court stated that the ‘cape-coloured’ community originates in the Cape province of South Africa, and its members have a wide degree of variation in skin colour. The clinic's general practice in sperm donation was to match the race of the donor with the race of the commissioning couple.
17 A and B, above n 14, at [20]. This was partially based on McFarlane v Tayside Health Authority [2000] 2 AC 59, which the Court described as holding that ‘no damages may be recovered where a child is born healthy and without disability or impairment’. See Sheldon, S ‘The harm of being born a different colour to one's parents’ (2011) 19 Medical Law Review 657CrossRefGoogle Scholar; Mulligan, A ‘Tortious liability for mistakes in IVF: duty of care, public policy and the non-identity Problem in A (A Minor) and B (A Minor) v A Health and Social Services Trust’ (2011) 34 Dublin University Law Journal 256Google Scholar.
18 Yearworth v Bristol NHS Trust [2009] EWCA Civ 371. This claim succeeded in bailment rather than in negligence.
19 Another form of mistake that might occur is one involving a breach of confidentiality. Again, this is not the kind of mistake in contemplation as it does not lead to a difference in the child that results from the treatment. A mistake leading to a breach of confidentiality could be litigated according to the usual mechanisms via an action for breach of confidentiality or data protection law. I am grateful to the Legal Studies anonymous reviewer for bringing these points to my attention.
20 See Re A and Others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325; In re AK [2017] EWHC 1154 (Fam), [2017] 4 WLR 169 and Re AI and AJ [2017] EWHC 3351 (Fam).
21 See the Congenital Disabilities (Civil Liability) Act 1976, ss 1A and 4(4A), as inserted by the Human Fertilisation and Embryology Act 1990, s 44.
22 ARB v IVF Hammersmith [2017] EWHC 2438 (QB), [2018] EWCA Civ 2803.
23 Such claims have arisen in other jurisdictions, and in some cases been settled. See, for example: ‘US woman receives $1m compensation for IVF error’ (Bionews, 9 August 2004), at https://www.bionews.org.uk/page_89371, accessed 21 August 2019, L Fagan ‘Couple angry wrong donor sperm used at Ottawa clinic: Dr Norman Barwin named in class-action lawsuit’ (CBC News, 7 April 2018) at https://www.cbc.ca/news/canada/ottawa/health-fertility-artificial-insemination-law-courts-1.4608954, accessed 21 August 2019. See discussion of Dr Barwin's case in Jones, M and Slater, B ‘Proceeding carefully: assisted human reproduction policy in Canada’ (2010) 19(4) Public Understanding Science 420CrossRefGoogle ScholarPubMed.
24 Here, the word injury is used to encompass both harm and damage, adopting the terminology of Nolan: Nolan, D ‘Rights, damage and loss’ (2017) 37(2) Oxford Journal of Legal Studies 255 at 259Google Scholar.
25 Witting, C ‘Physical damage in negligence’ (2002) 61(1) Cambridge Law Journal 189CrossRefGoogle Scholar; Stapleton, J ‘The gist of negligence’ (1988) 104 Law Quarterly Review 389Google Scholar; Conaghan, J and Mansell, WThe Wrongs of Tort (London: Pluto Press, 1999)Google Scholar. See useful discussion of different forms of harm in McBride, N and Bagshaw, RTort Law (London: Pearson, 5th edn, 2015) pp 127–128Google Scholar.
26 McLoughlin v O'Brien [1983] 1 AC 410; Page v Smith [1996] AC 155; Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310.
27 McFarlane v Tayside Health Authority [2000] 2 AC 59.
28 Wrongful pregnancy actions arise in circumstances where the negligence of the defendant has led to the birth of a child to the claimant that he or she did not want. Commonly, this occurs in the context of sterilisation operations, where a sterilisation is performed negligently, or the claimant is negligently advised as to the success of the operation or the risks of reversal. The claimant's claim is for the personal injury occasioned by pregnancy (if the claimant is a woman) and for the cost of raising the unwanted child.
29 After the operation the claimants had been advised that Mr McFarlane's sperm counts were negative.
30 Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012; Benarr v Kettering Health Authority (1988) 138 NLJ 179Google Scholar; Allen v Bloomsbury Health Authority [1993] 1 All ER 651.
31 The court did, however, make an award in respect of the pregnancy and labour.
32 Laura Hoyano has usefully mapped the ratio of each member of the court: L Hoyano ‘McFarlane v Tayside Health Board [2000] and Cattanach v Melchior [2003]’ in Herring, J and Wall, J (ed) Landmark Cases in Medical Law (Oxford: Hart Publishing, 2015) p 193 at p 204Google Scholar.
33 Lord Millett commented: ‘There is something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation’, rejecting the role of the parent's subjective view on this question.
34 Lord Steyn [2000] 2 AC 59 at 82.
35 Lord Slynn [2000] 2 AC 59 at 75; Lord Hope [2000] 2 AC 59 at 97; Lord Clyde [2000] 2 AC 59 at 103; Lord Millett [2000] 2 AC 59 at 111.
36 Lord Millett [2000] 2 AC 59 at 114. Other reasons advanced included, on the application of standard duty of care principles, it would not be fair, just or reasonable to require a doctor to pay for the costs of rearing Catherine. Lord Slynn [2000] 2 AC 59 at 76, citing Caparo Industries v Dickman [1990] 2 AC 605. Relatedly, Lord Clyde was concerned with the need for proportionality between the wrongdoing and the loss suffered thereby, Lord Clyde [2000] 2 AC 59 at 106.
37 McFarlane was followed in Ireland in the case of Byrne v Ryan [2009] 4 IR 542. Kelly J in the High Court adopted the holding of the House of Lords, and noting that the judges reached the same conclusion for different reasons, he commented that these all ‘boiled down’ to the same rationale, namely that the claim was neither fair nor just nor reasonable: [2009] 4 IR 542 at 578.
38 ACB v Thomson Medical Pte Ltd and Others [2017] SGCA 20. This case is considered in detail below.
39 Unlike in the case of A and B, her complaint did not arise from the racial element of the mix-up, but it seems that this contributed to the discovery of the mistake.
40 The second aspect is discussed below at Section 4(b).
41 ARB v IVF Hammersmith [2017] EWHC 2438 (QB), [2018] EWCA Civ 2803.
42 ARB v IVF Hammersmith [2018] EWCA Civ 2803 at [39].
43 The substantive contractual analysis in ARB is also of note from the tortious perspective. The Court of Appeal found that the clinic's process for obtaining consent was illogical and represented an abrogation of the clinic's duty to obtain consent, and thus that the clinic was in breach of its duty to take reasonable care to obtain ARB's written and informed consent: ARB v IVF Hammersmith [2018] EWCA Civ 2803 at [59].
44 Rees v Darlington Memorial Hospital, above n 7.
45 It noted that it would ‘reflect no credit on the administration of the law if a line of English authority were to be disapproved in 1999 and reinstated in 2003’: Rees v Darlington Memorial Hospital, above n 7, at 316 per Lord Bingham.
46 Parkinson v St James and Seacroft University Hospital [2002] QB 266.
47 A related category of cases are known as wrongful birth cases where the claim is that but for the defendant's negligence, the birth of the child, who has a disability not caused by the defendant, would not have occurred. The English courts have confirmed that the same principles apply to these cases as to wrongful pregnancy/wrongful conception cases: Groom v Selby [2001] EWCA Civ 1522, [2002] PIQR P18. These principles as applied in the context of wrongful birth have recently been addressed in Meadows v Khan [2017] EWHC 2990 (QB), [2018] 4 WLR 8 (High Court), Meadows v Khan [2018] EWCA Civ 2609 [2019] 4 WLR 3 (Court of Appeal).
48 The members of the Court expressed various views on Parkinson, while acknowledging that its holding did not fall to be examined on the facts.
49 Rees v Darlington Memorial Hospital, above n 7, at 317 per Lord Bingham.
50 See discussion of this wider effect of Rees in Priaulx, NThe Harm Paradox: Tort Law and the Unwanted Child in the Era of Choice (London: Routledge Cavendish, 2007) p 72CrossRefGoogle Scholar.
51 Rees v Darlington Memorial Hospital, above n 7, at 349.
52 Rees v Darlington Memorial Hospital, above n 7, at 334.
53 Lord Steyn criticised the award on the basis that it strayed beyond the bounds of permissible judicial creativity: Rees v Darlington Memorial Hospital, above n 7, at 335.
54 Rees v Darlington Memorial Hospital, above n 7, at 335.
55 Priaulx, above n 50, p 73. See also by Priaux exploring similar points: Priaulx, N ‘A letter from the UK: tort law and damages for the unwanted child’ (2008) 14(3) Journal of Legal Economics 45Google Scholar, Priaulx, N ‘Beyond stork delivery: from injury to autonomy in reconceptualising “harm” in wrongful pregnancy’ (2006) 38 Studies in Law, Politics and Society 105CrossRefGoogle Scholar, Priaulx, N ‘Conceptualising harm in the case of the “unwanted” child’ (2002) 9(4) European Journal of Health Law 337CrossRefGoogle Scholar.
56 Priaulx, above n 50, p 76.
57 Mason, JKThe Troubled Pregnancy: Legal Rights and Wrongs In Reproduction (Cambridge: Cambridge University Press, 2007) pp 181–182CrossRefGoogle Scholar.
58 Mason, above n 57, p 182.
59 Paz, T Keren ‘Compensating injury to autonomy in English negligence law: inconsistent recognition’ (2018) 26(4) Medical Law Review 585Google Scholar.
60 Stevens, RTorts and Rights (Oxford: Oxford University Press, 2007) pp 1–2CrossRefGoogle Scholar. Stevens points to the following comments of Lord Bingham as a classic example of unquestioning judicial acceptance of the loss model: ‘The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases?’ Fairchild v Glenhaven Funeral Services [2002] UKHL 22 at [9].
61 Nolan, D and Robertson, A ‘Rights and private law’ in Nolan, D and Robertson, A (eds) Rights and Private Law (Oxford: Hart Publishing, 2012)Google Scholar.
62 A separate view of note is that of Descheemaeker who, rather than adopting the loss versus rights framework, builds his analysis around two different conceptions of harm: the bipolar model and the unipolar model. The former sees the wrong and the compensation of that wrong as distinct stages, while the latter sees them as one stage: Descheemaeker, E ‘Unravelling harms in tort law’ (2016) 138 LQR 595Google Scholar.
63 Stevens, above n 60. For further development of Stevens’ position see R Stevens ‘Rights and other things’ in Nolan and Robertson, above n 61.
64 Burrows, for example, describes compensation as a well-established remedial goal in relation to damages, the normative justification for which is well-understood: Burrows ‘Damages and rights’ in Nolan and Robertson, above n 61, p 289. Note that Burrows also accepts the existence of restitutionary damages in more recent times.
65 Stevens, above n 60, pp 59–60. For recent analysis of Stevens’ rights model, and the interaction between rights and loss, see Nolan, above n 24.
66 On vindication in the law of torts see generally Edelman, J ‘Vindicatory damages’ in Barker, K et al. (eds) Private Law in the 21st Century (Oxford: Hart Publishing, 2017)Google Scholar; Witzleb, N and Carroll, R ‘The role of vindication in tort damages’ (2009) 17(1) Tort Law Review 16Google Scholar; Smith, SA ‘Duties, liabilities, and damages’ (2012) 125 Harvard Law Review 1727Google Scholar.
67 Smith, above n 66, at 1753.
68 Ibid.
69 Varuhas, J ‘The concept of vindication in the law of damages’ (2014) 34(2) Oxford Journal of Legal Studies 253CrossRefGoogle Scholar; Varuhas, JDamages and Human Rights (Oxford: Hart Publishing, 2016)Google Scholar.
70 Varuhas (2016), above n 69, p 23.
71 Varuhas points, as an example of this theory in action, to the acknowledgement by the Irish courts that part of the function of the law of torts is to vindicate constitutional rights: Grant v Roche Products [2008] 4 IR 679; Varuhas (2016), above n 69, p 74. Note that Ireland has a written constitution: Bunreacht na hÉireann, 1937.
72 Varuhas (2016), above n 69, p 33 citing inter alia Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] SC 871 at 833; Gregg v Scott [2005] 2 AC 176 at [99].
73 Varuhas (2016), above n 69, p 25.
74 Varuhas also identifies a third category of torts which have both a compensatory and vindicatory function, and gives the tort of private nuisance as the prime example of this. At times this tort protects the claimant's interest in the possession and enjoyment of land – a vindicatory function – but at other times addresses factual losses which arise from interferences with that enjoyment – a compensatory function: Varuhas (2016), above n 69, p 45.
75 Varuhas (2016), above n 69, pp 46–47.
76 On vindication in the law of contract see Pearce, D and Halson, R ‘Damages for breach of contract: compensation, restitution and vindication’ (2008) 28(1) Oxford Journal of Legal Studies 73CrossRefGoogle Scholar.
77 Edelman, above n 66.
78 Lumba v Secretary of State for the Home Department [2012] 1 AC 245.
79 Ibid, at 284.
80 Varuhas (2016), above n 69, pp 25, 62. See discussion of commentators who oppose and support the Lumba rationale in Edelman, above n 66, p 343.
81 The same distinction was acknowledged in Shaw v Kovak, above n 9.
82 She believes, however, that the concept of autonomy adopted by the majority in Rees is very thin: Priaulx, above n 50, pp 80–81.
83 Priaulx, above n 50, p 78. See also subsequent discussion of this in Priaulx (2017), above n 3, at 30.
84 See comments of Stevens that it is substitutive and so cannot be and is not offset by the ‘immeasurable’ gains of the child: Stevens, above n 60, p 77.
85 Stevens, above n 60, p 77.
86 Stevens, above n 63, p 135.
87 Varuhas (2014), above n 69, at 270.
88 Varuhas (2016), above n 69, pp 51–52.
89 Descheemaeker also considers Rees in his bipolar versus unipolar analysis. He argues that absence of factual loss ‘forced the law to switch over to the abstract definition of wrong-as-loss in order to grant substantial damages to the claimant’: Descheemaeker, above n 62, at 608.
90 Edelman, above n 66, p 361.
91 Nolan, D ‘New forms of damage in negligence’ (2007) 70(1) MLR 59CrossRefGoogle Scholar.
92 Ibid, at 79.
93 Note that Mason has queried whether the award is index-linked: Mason, above n 57, p 180.
94 A and B, above n 14.
95 Note also that Rees-type payment wards off distributive justice concerns. Because of its vindicatory purpose, the sum of money awarded in a case like this would probably be relatively low.
96 A and B, above n 14, at [33].
97 ARB v IVF Hammersmith [2017] EWHC 2438 (QB) at [322].
98 See Blackburn-Starza, above n 3.
99 Priaulx (2017), above n 3; Priaulx (2010), above n 3, at 92; Priaulx, N ‘Rethinking reproductive injury’ (2009) 69 Family Law 1161Google Scholar. Note that to a significant extent Priaulx focuses on the Yearworth-type fact pattern, which is not centrally considered in this paper.
100 Priaulx (2017), above n 3.
101 Priaulx (2017), above n 3.
102 ACB v Thomson Medical, above n 38.
103 See, as well as Purshouse and Keren-Paz, Clark, T and Nolan, D ‘A critique of Chester v Afshar’ (2014) 34 OJLS 659CrossRefGoogle Scholar; Green, SCausation in Negligence (Oxford: Hart Publishing, 2015) ch 7Google Scholar; Miola, J ‘Legal commentary: taking autonomy seriously? Loss of autonomy as a legal “harm”’ in Smith, SW et al. (eds) Ethical Judgments: Re-Writing Medical Law (Oxford: Hart Publishing, 2017)Google Scholar.
104 Purshouse, C ‘Liability for lost autonomy in negligence: undermining the coherence of tort law’ (2015) 22 Torts Law Journal 226Google Scholar. This analysis is explored further below.
105 T Keren-Paz ‘Compensating injury to autonomy: a conceptual and normative analysis’ in Barker et al, above n 66; Keren Paz, above n 59.
106 Alongside Rees, the case most commonly cited as involving recovery for loss of autonomy is Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134. In that case the claimant succeeded in her medical negligence action in which she claimed damages arising from suffering a known potential risk of a procedure, of which she had not been warned. Despite the fact that she admitted she could not say that she would never had had the procedure if she had been warned, she was permitted to recover in full, insofar as that injury was concerned. This is a divergence from the usual rules of causation. Autonomy is referenced throughout the judgments. See discussions in Purshouse, C ‘Judicial reasoning and the concept of damage: rethinking medical negligence cases’ (2015) 15(2–3) Medical Law International 155CrossRefGoogle Scholar; Stapleton, J ‘Occam's razor reveals an orthodox basis for Chester v Afshar’ (2006) 122 Law Quarterly Review 430Google Scholar; Clark and Nolan, above n 103; Keren Paz, above n 59.
107 Keren Paz, above n 59; Purshouse, C ‘Autonomy, affinity and the assessment of damages: ACB Thompson Medical PTE Ltd [2017] SGCA 20 and Shaw v Kovak [2017] EWCA Civ 1028’ (2018) 26(4) Medical Law Review 675CrossRefGoogle Scholar.
108 Shaw v Kovak, above n 9.
109 There had been a suggestion by the claimant that loss of autonomy was a separate cause of action, but this was not pleaded, and this argument was ultimately abandoned by the claimant.
110 It may also be significant to note the court's sceptical comments in respect of vindicatory damages. It noted the distinction between damages which serve a vindicatory purpose, and the making of an additional award to reflect the special nature of the wrong: Shaw v Kovak, above n 9, at [54], citing comments of Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. Significantly, however, the claimant ultimately did not ask the court to make a vindicatory award, so these comments are obiter.
111 Shaw v Kovak, above n 9, at [67].
112 Shaw v Kovak, above n 9, at [69].
113 The Court also found that an award would in principle be recoverable in respect of lack of consent, even if this operation was a success. This would seem to generate its own difficulties in terms of calculation of damages.
114 Note that the same distinction was drawn in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC, as discussed above.
115 Note that Keren-Paz argues that injury to autonomy is actionable in English law, and that the true ratio of Shaw is narrow: Keren Paz, above n 59.
116 ACB v Thomson Medical, above n 38. The facts of this are set out above at Section 2.
117 Damages in respect of pain and suffering arising from the pregnancy and/or the costs of the failed IVF procedure.
118 ACB v Thomson Medical, above n 38, at [115].
119 ACB v Thomson Medical, above n 38, at [115].
120 ACB v Thomson Medical, above n 38, at [121].
121 See inter alia Varuhas (2016), above n 69, pp 51–52; Nolan, above n 91, at 79; Descheemaeker, above n 62, at 608.
122 Purshouse's work was cited in the judgment.
123 ACB v Thomson Medical, above n 38, at [125].
124 ACB v Thomson Medical, above n 38, at [135].
125 ACB v Thomson Medical, above n 38, at [135].
126 This is a surprising result as the Court of Appeals discussed A and B in describing the kind of harm suffered and exploring its seriousness: ACB v Thomson Medical, above n 38, at [133].
127 ACB v Thomson Medical, above n 38, at [150].
128 Stevens, above n 60, p 1.
129 See distinguishing of Rees in Shaw v Kovak, above n 9, at [79].
130 Hoyano comments that the reasoning in cases like McFarlane shows ‘how far negligence law has come adrift of principle’: Hoyano, ‘Misconceptions about wrongful conception’ (2002) 65 Modern Law Review 883CrossRefGoogle Scholar. Priaulx cites this comment saying the entire line of reasoning, including Rees has come to be regarded as illustrating this: Priaulx, above n 50, p 72.
131 Purshouse, above n 104.
132 For a clear analysis of which torts protect which rights or interests see Steele, JTort Law: Text, Cases and Materials (Oxford: Oxford University Press, 3rd edn, 2014) p 8CrossRefGoogle Scholar.
133 Purshouse, above n 104.
134 Blackburn-Starza, above n 3.
135 Priaulx (2017), above n 3, see concluding discussion at 55–56.
136 Reflecting the concern raised in Shaw v Kovak.
137 This phrase is adopted from Cane, PThe Anatomy of Tort Law (Oxford: Hart, 1997)Google Scholar, which sets out the key components of a tort as: the sanctioned conduct, the protected interest and the remedies for the wrong. The protected interest is, of course, the right to reproductive autonomy.
138 Primarily because an action for loss of the opportunity to have a child does not encounter the same theoretical and policy problems involved in litigating the birth of a child.
139 If this was litigated in Ireland, the claimant should also plead a claim for breach of constitutional rights including inter alia the right to procreate. See Murray v Ireland [1991] ILRM 465; Roche v Roche [2010] 2 IR 321; Hanrahan v Merck Sharp & Dohme [1988] ILRM 629.
140 Eg the award in respect of loss of genetic affinity in ACB, and the openness of the Court to the conventional award in A and B.
141 Eg Dworkin, RLaw's Empire (Cambridge: Harvard University Press, 1986)Google Scholar; Robertson, JAChildren of Choice: Freedom and the New Reproductive Technologies (Princeton: Princeton University Press, 1994)Google Scholar; Robertson, JA ‘Liberalism and the limits of procreative liberty: a response to my critics’ (1995) 52 Wash & Lee L Rev 233Google Scholar; Harris, J ‘Rights and reproductive choice’ in Harris, J and Holm, S (eds) The Future of Human Reproduction (Oxford: Clarendon Press, OUP, 1998)Google Scholar; Alghrani, A and Harris, J ‘Reproductive liberty: should the foundation of families be regulated?’ (2006) 18 Child & Fam LQ 191Google Scholar, Jackson, above n 2, Priaulx, N ‘Rethinking progenitive conflict: why reproductive autonomy matters’ (2008) 16 Medical Law Review 169CrossRefGoogle ScholarPubMed; Boivin, J and Pennings, G ‘Parenthood should be regarded as a right’ (2005) 90 Archives of Disease in Childhood 784CrossRefGoogle ScholarPubMed; Nelson, ELaw, Policy and Reproductive Autonomy (Oxford: Hart Publishing, 2013)Google Scholar; Dahl, E ‘The presumption in favour of liberty: a comment on the HFEA's public consultation on sex selection’ (2004) 8(3) Reproductive Biomedicine Online 266CrossRefGoogle ScholarPubMed.
142 See in particular Robertson, JAChildren of Choice: Freedom and the New Reproductive Technologies (Princeton: Princeton University Press, 1994)Google Scholar; Robertson, above n 141.
143 Jackson, above n 2, p 7.
144 Dickson v UK App no 44362/04 (ECtHR, 4 December 2007); Evans v UK App no 6339/05 (ECtHR, 10 April 2007); A, B and C v Ireland App no 23379/05 (ECtHR, 16 December 2010); SH v Austria App no 57813/00 (ECtHR, 3 November 2011).
145 SH v Austria, above n 144; Costa and Pavan v Italy App no 54270/10 (ECtHR, 28 August 2012). On Art 8 in this context, see generally JM Scherpe ‘Medically assisted procreation: this margin needs to be appreciated’ (2012) CLJ 276; McGuinness, S ‘Health, human rights and the regulation of reproductive technologies in SH v Austria (Application no. 57813/00)’ (2013) 21 Medical Law Review 146CrossRefGoogle Scholar; Mulligan, A ‘Article 8 and the right to respect for the decision to have or not to have a child’ (2014) 4 European Human Rights Law Review 378Google Scholar.
146 Parillo v Italy App no 46470/11 (ECtHR, 27 August 2015).
147 In SH the Court referred to the ‘choice’ to engage in medically assisted procreation as an expression of the right to respect for private and family life: SH v Austria, above n 144, at [82]. See the statement in Parillo that the Art 8 protection concerned ‘the ability to exercise a conscious and considered choice regarding the fate of her embryos’: Parillo v Italy, above n 146, at [159].
148 See for example Cane, above n 137, which refers to the protected interest as a key component of the law of torts.
149 Varuhas notes that courts consistently link this fundamental feature to the importance of the right at stake: Varuhas (2014), above n 69.
150 Such losses might include the costs of further treatment, where a claimant wished to vindicate their right through having another child. This would be appropriate where the mistake has deprived the claimant of the opportunity to procreate, and there is further treatment which can ameliorate this situation. Eg where a clinic wrongfully inseminates a woman's egg with donor sperm (as in ACB) she may wish to have another child using her husband's sperm.
151 Protected by defamation.
152 Protected by trespass to land.
153 Varuhas (2016), above n 69, pp 27–30. Varuhas observes that certain torts actionable per se are strict liability such as defamation or trespass to land or goods, whereas more than a voluntary act is required to establish battery. The defendant in battery must either intend to touch the claimant or be reckless as to whether she touches the claimant.
154 S Smith ‘Strict duties and the rule of law’ in Austin, LM and Klimchuk, DPrivate Law and the Rule of Law (Oxford: Oxford University Press, 2014) pp 193–195Google Scholar. It is not properly characterised as a duty to take extreme care, as the duty can be fulfilled without taking extreme care. It is the case that taking extreme care is the best way to avoid liability: Gardner, J ‘Obligations and outcomes in the law of torts’ in Cane, P and Gardner, J (eds) Relating to Responsibility: Essays for Tony Honoré (Oxford: Hart Publishing, 2001)Google Scholar.
155 Nagel, T ‘Moral luck’ in Mortal Questions (Cambridge: Cambridge University Press, 1979) pp 24, 31Google Scholar; Weinrib, EJThe Idea of Private Law (Cambridge: Harvard University Press, 1995) p 181Google Scholar.
156 J Gardner ‘Some rule of law anxieties about strict liability in private law’ in Austin and Klimchuk, above n 154, p 220.
157 Fuller, LLThe Morality of Law (New Haven: Rev edn, Yale University Press 1969) pp 33–38Google Scholar.
158 The choice to have a child with one's life partner, who will go on to parent that child as it reaches maturity, is clearly more significant than choosing between two anonymous donors, neither of whom would ever parent the child.
159 An example of an attempt to grapple with this and standardise awards can be found in the ‘General guidelines as to the amounts that may be awarded or assessed in personal injury claims – book of quantum’ (Dublin, Personal Injuries Assessment Board, 2016).
160 Awards of damages vary very significantly across jurisdictions, even with very similar legal systems. On variations in damages for personal injuries between England and Wales and Ireland see C Brennan, ‘Our payouts are three times that of the UK, so why wouldn't whiplash legislation work here?’ The Journal (Dublin, 22 April 2018) at http://www.thejournal.ie/whiplash-legislation-ireland-3968982-Apr2018/ accessed 21 August 2019.
161 On the fluid and evolving nature of tort law, and its link to changing social values see Steele, JTort Law: Text, Cases and Materials (Oxford: Oxford University Press, 3rd edn, 2014) p 6CrossRefGoogle Scholar; Deakin, S et al. Markesinis and Deakin's Tort Law (Oxford: Oxford University Press, 7th edn, 2013) pp 8–9CrossRefGoogle Scholar; McBride and Bagshaw, above n 25, p 7.
