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    02:37 PM Hairul Hakkim (Justices’ Law Clerk, Supreme Court, Singapore) & Kevin Ho Hin Tat (Practice Trainee, WongPartnership LLP)

    Genetic affinity as a novel remedy for wrongful fertilisation – a case of assessing the incalculable? ACB v Thomson Medical Pte Ltd and others [2017] SGCA 20

        

    Introduction

    In what has been described by the Court of Appeal (“the Court”) as “possibly one of the most difficult” cases thus far, the Court of Appeal held in the decision of ACB v Thomson Medical Pte Ltd and others [2017] SGCA 20 (“ACB v Thomson”) that the parents of a child born out of medical negligence cannot claim as damages the full costs of raising the child (the “no upkeep costs” rule). However, the Court recognised instead, for the very first time, the loss of “genetic affinity” as a head of damages. This commentary attempts to analyse the decision that inevitably treads on ethical contours over the public/private, law/morality and law/politics spheres. In doing so, it seeks to analyse the award of genetic affinity through a “conventional sum”, as well as possible exceptions to the “no upkeep costs” rule that the Court hinted at.

    Brief facts

    The Appellant (a Singaporean Chinese woman) together with her German husband procured an in vitro fertilisation (“IVF”) in 2010 from the second Respondent, a fertility clinic. Subsequently, the parents noticed that their baby daughter (“Baby P”) had a different skin tone and hair colour from their own, as well as their first child’s. Further investigations revealed that the Appellant’s egg had been fertilised with the sperm of an unknown Indian donor, instead of her husband’s. The Appellant then sued the Respondents in the tort of negligence, and for breach of contract against the second Respondent. The issue before the Court was whether the Appellant could claim for the upkeep costs of raising Baby P.

    The decision

    The “no upkeep costs” rule

    The Appellant was first denied recovery for upkeep costs in the High Court. The High Court held that it had not been shown that “but for” the Respondents’ negligence, the Appellant would not have incurred these upkeep costs since she did in fact want a child through IVF. Whilst the Court of Appeal upheld the outcome, it disagreed with the High Court on this analysis, opining that this analysis ignores the purpose for which the upkeep costs would have been incurred. The Appellant sought IVF not simply to have any child “irrespective of paternity”, but to have a “child with her husband” (ACB v Thomson at [41]). That makes all the difference because the Appellant was only willing to spend the upkeep costs for a child that was completely hers and her husband’s. Thus, the Court did not consider the “but for” causation as the negating factor.

    Instead, the Court gave two policy reasons why upkeep costs should not be awarded:

    1. The obligation to maintain one’s child is at the “heart of parenthood” which are “fundamental, indivisible, and incapable of sounding in damages” (at [93]). The Court was of the view that a parent cannot legally shirk their financial responsibilities of parenthood and claim an indemnity for the costs of raising the child (at [93]-[94]).
    2. To recognise such a head of damages would be “fundamentally inconsistent with the nature of the parent-child” relationship as it would place parents in a position where their personal interests as a litigant would conflict with their duties as a parent (at [95]). This is because parents would have to engage in an exercise of proving that their child represents a “net loss”, encouraging the “exaggeration of any infirmities and the diminution of benefits” of their child which is fundamentally inconsistent with one’s obligations as a parent (at [95]). As pointed out by the Court, this could lead to a perverse outcome where loving parents get significantly lesser damages than disgruntled parents who disparage their child (at [99]).

    The Court was also of the view that these policy considerations applied to bar the Appellant’s claims in both tort and contract (at [102]).

    Loss of autonomy

    The Court also considered the loss of autonomy as an alternative ground for damages, but rejected it for three different reasons.

    1. Conceptual objection: The concept of ‘autonomy’ is too nebulous and disputed to ground a claim – it is not the role of the courts to decide such questions involving political and moral philosophy (at [119]).
    2. Coherence objection: The action for “loss of autonomy” (being vindicatory in nature) is not consistent with the overall structure of common law as a whole, and more particularly, the tort of negligence which focuses on the compensatory approach of providing remedies for harms (at [121]-[122]).
    3. Over-inclusiveness objection: If such a head of damages is recognised, it could enable the requirement of “actionable damage” to be “side-stepped almost at will” as any form of damage (even those not actionable, eg, illness not amounting to a recognisable psychiatric illness) could creatively be reframed as some form of damage to autonomy (eg, the right to be free from fear of developing a life-threatening disease) (at [123]-[124]).

    Recognition of genetic affinity

    While the Court rejected the Appellant’s claim for upkeep costs and loss of autonomy, the Court acknowledged that the Appellant did suffer some kind of loss due to the IVF mix-up (at [126]). The Court characterised this loss as “genetic affinity”, which is fundamentally a “desire for identity bounded in consanguinity”. It embodies the “emotional bond” between parent and child established through shared ancestry and “a recognition of commonalities” in physical traits and character (at [128]).

    The Court noted that this interest in affinity operated not only at a bilateral level between parent and child, but also multilaterally, in a wider network including the family’s relationship with the community (at [128]). The Court went onto consider that this loss of genetic affinity was all the more significant in a multi-racial society like Singapore, where “physical resemblance, race and cultural and ethnic identity” still hold important roles (noting parenthetically that it was in no way approving such prevailing attitudes) (at [134]).

    With regard to the quantum of damages, the Court preferred to award a “conventional sum” for non-pecuniary loss by benchmarking the numerical value against the upkeep costs. Whilst awarding the full upkeep costs would be tantamount to a full “indemnity” for raising Baby P, a nominal sum on the other hand would not properly recognise the “value of the interest” at hand. Hence, the Court decided that awarding 30% of the upkeep costs was “just, equitable, and proportionate” on the facts of the case (at [150]).

    Analysis on the loss of genetic affinity

    It has been observed that issues concerning actionable damage are often “repackaged as questions of duty or causation” and scant regard has been given to the categories of actionable damage (Donal Nolan, “New Forms of Damage in Negligence” (2007) 70(1) MLR 59 at p 59). The decision of the Court is thus to be lauded for not shying away from analysing the issue of actionable damage, and for being bold in crafting a novel head of damages amidst the substantial body of jurisprudence. This is especially since the common law in tort has traditionally eschewed radical legal development, preferring instead to develop “incrementally and by analogy with established categories” (Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 43). The creation of this remedy enabled the possibility of reasonably compensating the Appellant without unduly compromising the social mores and values of our legal culture.

    Difficulties with quantification of genetic affinity

    The Court candidly admitted that its approach of benchmarking the loss of genetic affinity to the upkeep costs of raising the child was not “theoretically elegant” (at [149]). Nonetheless, the Court decided that this was the preferred approach for practical reasons, caveating that the quantum of full upkeep costs was only a benchmark and that this in no way derogates from the rationale of the “no upkeep costs” rule (at [149]). However, there are two difficulties with this approach.

    First, this approach is difficult to reconcile with the Court’s aversion to awarding upkeep costs on the basis that it would be inconsistent with the nature of the parent-child relationship. As a practical matter, even if the claim rests on genetic affinity as the more palatable head of damages, at the quantum stage, the Appellant would still have to engage in the same cold, calculative exercise of first proving Baby P’s total upkeep costs, before eventually receiving 30% of that proven amount. This approach would inevitably require parents to prove that their child represents a “net loss” to them, incentivising them to emphasise the detriments of their child, even more so in the case of partial recovery of upkeep costs (so as to maximise the damages) as compared to full recovery. This overlaps and results in the same policy objections, which led the Court to refuse recognition of upkeep costs in the first place. It is not simply a matter of elegance (or lack thereof) or of mere vestigial significance; as a matter of substance, the claim is contingent on and inseparable from the upkeep costs, which poses a fundamental inconsistency with the nature of the parent-child relationship and in some sense recognising upkeep costs (albeit a percentage of it) through the backdoor even though the Court firmly resisted the claim on policy grounds. 

    Second, the Court’s decision to benchmark the loss suffered by the Appellant against upkeep costs can be said to be incoherent with the nature of damages awarded. This is because the Court is awarding damages for the non-pecuniary loss of genetic affinity by benchmarking against the pecuniary standard of the financial costs involved in raising Baby P. In this vein, it is not immediately clear as to how and why a pecuniary award, expressed as a percentage of the upkeep costs would adequately take into consideration the particular type of harms suffered by a parent, highlighted by the Court at [147], including the particular reasons for seeking fertility treatment, the manner of negligence, as well as other “personal circumstances” (such as particular familial and cultural histories) of the parent.

    Having said that, the authors acknowledge that the alternative approach of attempting to measure the non-pecuniary loss of genetic affinity would mean that the courts would have to engage in a complex, highly controversial (ACB v Thomson at [149]) and potentially racially sensitive exercise. While there could qualitatively be a difference in the losses suffered by for example, Chinese parents with an Indian child vis-à-vis Indian parents with a Chinese child, such an exercise of quantification could be contrary to the public policy of maintaining racial equality in Singapore. Thus, neither approach seems to be satisfactory.

    Proposal for a uniform award

    In future cases, parliamentary intervention may be warranted to set a uniform award through consultation and study, which were the opinions of Lord Steyn and Lord Hope in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 (“Rees”) (at [46] and [77]). One way this can be achieved is by referencing the average cost of raising a child up to the age of majority in Singapore (Margaret Fordham, “An IVF Baby and a Catastrophic Error—Actions for Wrongful Conception and Wrongful Birth Revisited in Singapore” [2015] Sing JLS 232 at p 239). The primary benefit of this approach is that it avoids the fundamental problem of parents zealously proving that their child represents a “net loss” to them in order to garner a larger award. 

    One foreseeable objection to such a uniform award is that it may not compensate the “particular plaintiff for the particular types of harm” suffered (ACB v Thomson at [142]). While this is admittedly a valid concern, it is submitted that the desire to tailor injury severity ought to be downplayed for two reasons. First, the loss of genetic affinity is simply something that is abstractly incalculable. As Lord Hope pointed out in Rees, a uniform award is the best means by which the courts can arrive at a figure where the damage suffered is “incapable of being calculated arithmetically” (at [71]). Second and more pertinently, it is morally and socially inappropriate to value the unique loss suffered by each and every parent in a wrongful fertilisation case – value judgments ought not to be made that genetic affinity is more important to some parents, and less important to others.

    A point of comparison would be the tangentially related context of bereavement where Parliament has fixed the damages for grief at a fixed sum (s 21 of the Civil Law Act (Cap 43, 1999 Rev Ed)). Despite strong arguments made to the contrary to individualise an award for bereavement, most jurisdictions in the world have resisted these arguments on the basis that an award that aims to quantify the grief suffered when a loved one is wrongfully killed would be arbitrary and offensive to the parties. The worth of a human life in the eyes of his or her loved ones is not appropriate to be individualised – the same can equally be said about valuing the loss suffered by parents when their child is not aligned with their genetic wishes. It would not only be arbitrary and inappropriate to put a number to such (rightfully) incalculable losses, it also places an unbearable moral burden on the courts.

    Possible contractual exceptions to the “no upkeep costs” rule

    It is significant that the Court, in closing its analysis on the issue of upkeep costs, left open two contractual exceptions at [105] that were raised by the House of Lords in McFarlane v Tayside Health Board [1999] 3 WLR 1301 (“McFarlane”):

    1. where there is a contractual warranty guaranteeing a specific outcome, eg, that the child would contain the genetic material of both parents (McFarlane at 1334D-F);
    2. where an "appropriate contract" allows for the recovery of upkeep costs (McFarlane at 1312H-1313A).

    Despite holding at [102] that the policy considerations militating against recognising tortious claims should apply equally to contractual claims, the Court opined that in cases under the second category, a balance needs to be struck between the two competing set of principles – “general enforceability of bargains” vis-à-vis the policy considerations against upkeep costs (at [105]). Clearly, the Court must have thought that in such cases, greater weight should be given to enforceability than in the case of warranties. However, the questions of how much more weight and where the balance ought to be struck were left open by the Court.

    It is submitted that where an “appropriate contract” takes the form of a liquidated damages clause, providing for an agreed fixed sum of damages (“LD Clauses”), it should withstand judicial scrutiny (unless it is adjudged to be a penalty clause). This is for two reasons.

    First, the express stipulation of the quantum of damages would put to rest the perennial worry that parents would have to prove their children represent a “net loss” (a worry that is still present in the case of a warranty and a general damages clause). This is especially since the whole point of an LD clause is to facilitate recovery without the difficulty and expense in proving damages (Clydebank Engineering and Shipbuilding Co Ltd v Don Jose Ramos Yzquierdo y Castaneda [1905] AC 6 at 11). Upholding such a clause would thus not necessarily be inconsistent with the parent-child relationship, which was one of the policy reasons for the “no upkeep costs” rule.

    Second, LD clauses are “non-compensatory” in nature and do not focus on “making good such loss” that the aggrieved party suffered. Instead, it is simply about giving effect to “the agreement that had been struck between the parties” (The Law of Contract in Singapore (Andrew B L Phang gen ed) (Academy Publishing, 2012) at para 23.011). Since the intended effect of an LD clause in this context would not be to compensate the parents for the expenses incurred in raising the child, which cannot be properly characterised as a “loss” due to the obligations of parenthood (ACB v Thomson at [90]), upholding such a clause would simply be a matter of respecting parties' intentions.

    In light of both these reasons, it is submitted that policy considerations cannot act as an absolute trump over the principle of freedom of contract, and that the proverbial balance should be tilted in favour of the latter in such a case where the policy considerations are not fully engaged. Although it is hard to envisage an LD clause in such a context, such a possibility has in fact been contemplated in the context of wrongful conception (Fred Norton, “Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages” (1999) 74 NYU L Rev 793 at p 820).

    Forging ahead

    The decision is to be welcomed for precluding the full recovery of upkeep costs. At the heart of the decision lies a strong recognition of the “inestimable value and dignity” of human life (at [210]) and the need to preserve the traditional family unit in our society. In this regard, the Court rightly embraced the role of policy considerations (outside of illegality and public policy) in governing the type of damages recoverable, not only under tort but also in contract.

    Although the recognition of genetic affinity was appropriate in the circumstances, it still poses practical difficulties with the assessment of its quantum, to which there are no easy solutions. The case has since been remitted for assessment of damages to the High Court. One can only hope, as advised by the Court at [152], that the parties can reach an amicable settlement on the quantification of damages. This would obviate the need to ascertain Baby P’s upkeep costs by detailing the entire costs of raising her, shielding Baby P from further public scrutiny and doubt about her well-being and self-worth.

    * The opinions contained in this commentary reflect the authors’ own views and are not to be understood as reflecting the views of the authors’ employers.

    ** This blog entry may be cited as Hairul Hakkim and Kevin Ho Hin Tat, “Genetic affinity as a novel remedy for wrongful fertilisation – a case of assessing the incalculable?”  (9 April 2017) (http://www.singaporelawblog.sg/blog/article/182)

    *** A PDF version of this entry may be downloaded here

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