ACB V. THOMSON MEDICAL PTE. LTD.: RECOVERY OF UPKEEP COSTS, CLAIMS FOR LOSS OF AUTONOMY AND LOSS OF GENETIC AFFINITY; FERTILE GROUND FOR DEVELOPMENT?

• Date: 01 April 2018
• Author: English, Jordan

Content I Introduction II Background A Facts of ACB B Decision of the Primary Judge III Decision on Appeal A Claim for Upkeep Costs 1 Reproductive Wrongs 2 A Question of Causation? 3 Recovery of Upkeep Costs B Claim for Loss of Autonomy 1 Conceptual Objection 2 Coherence Objection 3 Over-Inclusiveness Objection C Loss of Genetic Affinity IV Comment A Causation B Arguments against the Recovery of Upkeep Costs C Loss of Autonomy D Loss of Genetic Affinity E Implications for Australia V Conclusion I Introduction

In ACB v Thomson Medical Pte Ltd, the Court of Appeal of Singapore was presented with a rare opportunity to consider the proper boundaries of civil liability in the context of one of the most vexed questions in the law of negligence: whether the law should permit recovery by parents of the upkeep costs of raising a child they never intended to have. (1) The question has drawn different responses from various common law jurisdictions. In the United Kingdom, the House of Lords in McFarlane v Tayside Health Board overturned more than two decades of appellate and first instance authority, and held that upkeep costs were not recoverable. (2) In Cattanach v Melchior, the High Court of Australia declined to follow McFarlane, and awarded upkeep costs. (3) Recovery has been allowed in South Africa, (4) but not in Canada (5) or New Zealand. (6)

It is important to appreciate from the outset, however, that the facts of the case before the Court of Appeal in ACB differed from all of the above decisions in one material respect. As is explained below, the complaint of the appellant in ACB was not that she did not want a child, but that she did not want that particular child. Writing on behalf of the Court, Andrew Phang Boon Leong JA conducts an impressive review of the leading authorities in several jurisdictions and evaluates in a principled way the arguments for and against recovery. The length of the decision is testament to the complexity of the issues it raises, as is the Court's comment that the case was 'possibly one of the most difficult to come before [the] court thus far'. (7) Ultimately the Court declined to allow recovery of upkeep costs, but instead awarded the plaintiff damages reflecting her 'loss of genetic affinity. (8) The Court also considered but refused to award punitive damages or damages for loss of autonomy.

In this note, we examine the decision and the implications of a number of the Court's arguments. First, we argue that the Court's reasoning with respect to causation departs from the orthodoxy of the 'but for' test as it is understood at common law and impermissibly focuses on the purpose of the loss suffered. However, we identify an alternative basis on which the result might be justified. Secondly, we explain why the Court's decision brings clarity to the arguments against the recovery of upkeep costs and elaborate on why the Court was correct to refuse to recognise loss of autonomy as a compensable head of damage. Thirdly, we address the most novel aspect of the decision, the recognition of loss of genetic affinity. This raises more questions than it answers and is susceptible to several conceptual objections. Chief among these objections is that, on the characterisation of loss of genetic affinity adopted by the Court, it is difficult to distinguish the award from an award for loss of autonomy, which was expressly rejected by the Court.

Finally, we explain the possible implications of the decision for Australian courts, particularly in light of state statutes which have sought to reverse the effect of Cattanach. The decision in ACB indicates the potential for this issue to arise in a new context, namely, cases involving wrongful fertilisation. More importantly, as we argue below, a claim for loss of genetic affinity, if it were to be recognised, would not be prohibited by any of the state statutes dealing with claims for upkeep costs. Australian courts would therefore be free to make an award of damages for loss of genetic affinity if they considered it appropriate to do so.

II Background

A Facts of ACB

The appellant, a Singaporean-Chinese woman, and her husband, a German man of Caucasian descent, wanted to start a family. In 2006 they successfully undertook in-vitro fertilisation ('IVF'), leading to the birth of a son in 2007. In 2010 the appellant engaged the respondents to provide a further round of IVF treatment, which resulted in the birth of a daughter ('Baby P') in October 2010. The appellant and her husband noticed that Baby P had a different skin tone and hair colour from their own and from their first child. After conducting further investigation, it became apparent that Baby P's DNA did not match that of the appellant's husband. It transpired that the appellant's egg had been fertilised with the sperm of an unknown Indian donor, instead of the appellant's husband's sperm.

The appellant commenced proceedings against the respondents in negligence. (9) Although the appellant could not identify a particular negligent act, she relied on the doctrine of res ipsa loquitur to establish her claim. The appellant claimed:

* damages for 'pain and suffering relating to the pregnancy as well as damages for mental distress'; and

* damages reflecting the upkeep costs of, among other things, enrolling Baby P in an international school in Beijing, tertiary education in Germany, medical expenses, and feeding and caring for Baby P ('the upkeep claim'). (10)

The respondents admitted that they were liable to pay damages for pain and suffering, and mental distress, but sought to strike out the portion of the statement of claim relating to the upkeep claim. This was allowed at first instance by an assistant registrar, but reversed on appeal. (11) In 2014, interlocutory judgment was entered against the respondents, with damages to be assessed. Prior to the hearing on the assessment of damages, the respondents sought to have determined whether upkeep costs could be claimed by the appellants. (12)

B Decision of the Primary Judge

The primary judge (Choo Han Teck J) held that the appellant was 'not entitled in law to claim damages for ... upkeep [costs]. (13) His Honour rejected as a 'mere afterthought' an argument that the respondents had failed to detect and inform the appellant of the error ahead of time, thereby denying her the opportunity to have an abortion. (14) In relation to the substantive argument, his Honour held that the upkeep claim failed because the appellant 'had wanted a second child all along. (15) His Honour distinguished 'wrongful birth' cases, concerning claims by parents for upkeep costs after one parent had been negligently advised that a sterilisation procedure had been successful. Here, 'Baby P was not an unwanted birth in the sense that the [appellant] did not want to have a baby at all'; rather the appellant 'just wanted a baby conceived with her husband's sperm. (16) As such, it could not 'be said that the [appellant] and her husband [had] not contemplat[ed] having to expend money' on the costs of raising a child. (17) In effect, his Honour rejected the claim on the basis that the loss suffered could not be causally linked to the respondents' negligence, in that the same upkeep costs would have been incurred if there had been no negligence.

III Decision on Appeal

The Court of Appeal considered four issues:

* whether the appellant could, as a matter of law, maintain the upkeep claim;

* whether the appellant could maintain a claim for loss of autonomy;

* whether the appellant could recover on another basis, namely for her loss of genetic affinity; and

* whether the appellant could maintain a claim for punitive damages.

This note considers the Court's conclusions in respect of the first three issues. The Court's treatment of punitive damages in tort is not considered. (18)

A Claim for Upkeep Costs

1 Reproductive Wrongs

The Court began with an overview of the decided cases concerning claims for 'reproductive wrongs'. (19) It noted that, in general terms, the cases fell into three categories:

* 'wrongful life' cases, involving claims by children where a healthcare professional's wrongful act caused the a child to suffer from a disability or some disadvantage;

* 'wrongful birth' cases, involving claims by parents where the negligent act involves either a failure to inform the mother that she was pregnant, or to advise her while pregnant that the foetus would be born disabled; and

* 'wrongful conception' cases, involving claims arising out of failed sterilisation operations, brought by parents who did not want to conceive against the medical professional who either failed to perform the operation properly or who informed the parents that the procedure was successful when it was not. (20)

The Court immediately noted that the present case did not fit neatly into any of the above categories. (21) Although the case resembled wrongful conception cases in that, but for the negligence of the respondents, Baby P would not have been born, '[t]he appellant, unlike the plaintiffs in the wrongful conception cases, did want a child'. (22) The case thus fell into a fourth category, 'wrongful fertilisation, in which, hitherto, the issue of upkeep costs had been considered in only one case. (23) As the Court explained, the essence of such a claim is that 'the plaintiffs never planned to have this child ... but instead planned for and desired to have a child with whom they would share genetic kinship'. (24)

2 A Question of Causation?

The Court disagreed with the primary judge's conclusion that the fact that the appellant had wanted a second child all along was sufficient to dispose of the claim on the basis that the appellant's loss could not be causally linked (in the 'but for' sense) to the respondents' negligence. (25) The Court described this analysis as involving the 'fundamental error' that it 'ignore[d] the purpose for which the expenses were (and would have been) incurred...