In an article published in this quarter’s issue of the Journal of Personal Injury Law, Chris Thorne, Partner at Clarke Willmott with a special interest in infertility and IVF issues, explores the shortcomings in the law relating to the inability to have a family as a result of the negligence of others.
As solicitor for the Claimants in the Bristol, Sheffield and Edinburgh sperm destruction cases Chris has a unique insight into the challenges faced by clients and the shortcomings of the legal system when the choice to have a family is taken from people desperate to become parents, as a result of the failings of the medical profession. Since writing the article the decisions of Sir James Munby, President of The Family Division of the High Court have brought the issue into greater focus. In nine cases to date, including Re the Human Fertilisation and Embryology Act 2008 (Case G)  EWHC 729 (Fam), he has been obliged to decide on issues of parenthood where IVF clinics have failed to complete standard consent forms correctly. His exasperation at the feeble response of the clinics and the need for proper recognition of the damage done to the parents in these circumstances is clear. If parents who have a child which may be biologically but not legally theirs are deserving of compensation, how much more so do those who have been denied the prospect of having children at all.
In a jurisdiction where the value placed upon the distress caused by unauthorised access to celebrity text messages is approximately ten times the value placed upon a life, it should perhaps come as no surprise that there is as yet no clear guidance on the assessment of damages in cases involving the ability to become a parent. The article explores the lack direction from the courts in identifying an appropriate level of compensation, drawing on analogies with failed sterilisation and wrongful birth cases, perhaps a perverse starting point but one which highlights the fact that there is a much more clearly identified route to compensation for the birth of the unwanted child than for the absence of a child much wanted.
In the leading failed sterilisation case, McFarlane v Tayside Health Board  2 AC 59 the Court declined to award damages for the cost of bringing up a healthy but unplanned child but did award £7,500 for the pain and suffering of pregnancy and delivery. In Parkinson v St James and Seacroft University Hospital NHS Trust  3 All ER 97 the Court permitted the Claimant to recover, in addition to general damages for the pain and suffering of pregnancy, the cost of bringing up a disabled child, in so far as it exceeded the cost of bringing up a healthy child.
It is a personal Injury – what is the fuss?
Claims for damages for personal injury have long taken into account the impact of the inability to have a child, usually as the product of traumatic or clinical damage to the reproductive organs, rather than regarding such loss as a primary claim in itself. The issue becomes obscure when any concept of underlying injury is taken out of the equation. In the Bristol sperm destruction cases (Yearworth and Ors v North Bristol NHS Trust  EWCA Civ 37), a group of Claimants had been diagnosed with various strains of cancer. Each of the young men in the group was advised that chemotherapy was the most appropriate treatment but that it carried with it a risk of infertility. In each case, the patients were advised to bank sperm samples to preserve the ability to father children in the event that infertility ensued. Sadly the Defendant Trust failed to take adequate care of the samples and they were subject to thawing, damaging them beyond use. Breach of duty was not in issue but the existence of a claim in law in any form was disputed by the Defendant. Following a prolonged and costly legal battle, Chris brought the claims to a successful conclusion, the bracket achieved for the loss of ability to father a child being in region of the £20,000 to £30,000.
The most recent consideration of the issues is to be found in the Opinion of Lord Stewart, sitting in the Outer House, Court of Session in a debate in the case of Richard Holdich and Others v Lothian Health Board  CSOH 197, which was in many respects a rehearing of the Yearworth in the Scottish jurisdiction. The facts were almost identical, the issues the same, the outcome not dissimilar. As in Yearworth, out of court settlement prevented the Court giving any guidance on the appropriate level of compensation. Whether the loss of the ability to have a family, howsoever caused, is a loss of amenity, a loss of autonomy or a thing in it’s own right is of no concern to those who suffer such loss. Given the unique meaning and purpose of parenthood, perhaps the loss should stand as a head of damage above all others.
If you have experienced issues relating to fertility, infertility or IVF contact Chris Thorne on firstname.lastname@example.org or 0345 209 1461