Dear Neil/Colin,

Presumably there could be some compensable loss for disappointment in contract as the IVF contract would at least partly be a contract for providing relief from distress.

Rather interestingly, we've just had a paper on causation for medical negligence delivered at the 3rd HKU-NUS-SMU symposium here in Hong Kong where Michael Furmston very pertinently asked the presenter why no practitioner in Singapore had thought to bring a claim for breach of contract where loss of chance is clearly compensable (Chaplin v Hicks) and where almost every claim for medical negligence involves a contract rather than in the tort of negligence, where the claim remains controversial. Perhaps this is an instance of what Birks described as stovepipe mentality amongst lawyers? Certainly, the large firms in Singapore do not usually represent patients in such suits.

On the subject of the media 'analysis' in Singapore, whilst some of the comments about the law not catching up with technology/social issues are no doubt correct, I found it mildly amusing that the presumption of legitimacy is questioned as outdated. Surely, it ought to have been obvious that this was a rebuttable presumption that accorded with (still, I assume) probabilities. One would assume that, more likely than not, a child born of a married woman in Singapore was her husband's child, whether conceived naturally or otherwise. I suppose though that much could have changed the 5 years I've been away from Singapore.

Regards,

Kelvin

Sent from my iPad

On Nov 15, 2010, at 16:04, Colin Liew <colinliew@gmail.com> wrote:

Dear Neil,

I agree that this is not the paradigm "wrongful birth" case, but I was too lazy to think up a suitable subject - perhaps this email should have been headed "wrongful IVF treatment" instead. I wonder whether the outcome would have been equally clear-cut if the parents had sued the IVF provider in negligence? There would be real difficulties as to what the loss or damage is, as well as whether any duty of care is even owed, but in view of the many divergent opinions in the McFarlane and Rees cases, I suppose this is something over which people may differ.

Even if the parents have an unanswerable claim in contract, I find it somewhat difficult to see how damages are to be awarded - how does one measure the loss of expectation in this case?

Colin 

On Mon, Nov 15, 2010 at 3:41 PM, Neil Foster <Neil.Foster@newcastle.edu.au> wrote:

Dear Colin;
Thanks very much, a fascinating question (but my exam papers are already printed!) Interested to see that the judge cites Watt v Rama from Victoria.
 Perhaps worth noting that this is not in the class of cases that the literature usually calls "wrongful birth" (which are cases brought by parents, usually in relation to failed sterilisation procedures.) Here there seems no doubt that the parents would be able to recover damages in contract or under general provisions relating to products, as they were supplied with something (the sperm) that did not meet their requests. Indeed I note the judge seems to hint that the IVF providers had acknowledged liability to the parents and were prepared to pay some damages. Should contract damages here include an amount for disappointment? I would be the first to say that a person of one race is not worth any less than a person of another race (Gal 3:28), but the complications flowing from being required, contrary to one's will, to be involved in a mixed race family (including comments by others about paternity, etc)... very tricky.
As far as the action by the children goes, I disagree with the judge's comments about their not having sufficient "status" to mount the action (as the harm was caused before they were born)- we have had this debate before on the ODG I think. Whatever the logical problems, the law just does recognise claims brought by children once they are born where there was harm caused while in the womb.
But I think I would agree with the decision that there is no compensable harm here to the children under the law of negligence. In the end one does not have a right to be free from nasty comments made by class mates and neighbours. And in the Western world today it cannot be right for the civil law to say that being of one race rather than another is a legally compensable wrong.
Regards
Neil


Neil Foster
Senior Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

>>> Colin Liew <colinliew@gmail.com> 15/11/10 5:52 PM >>>
Dear all,

Members may be interested in *A (A Minor) & ors v A Health and Social
Services Trust* [2010] NIQB
108<http://www.bailii.org/nie/cases/NIHC/QB/2010/108.html>,
a decision of the High Court in Northern Ireland, to the effect that a child
born with the wrong skin colour as a result of careless or improper IVF
treatment is not owed a duty of care in negligence by the IVF provider. Not
a surprising conclusion, but oddly enough only a week or so after the
decision, a similar incident occurred here in Singapore (see
here<http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/legalnews/69560.html?utm_source=web%20subscription&utm_medium=web&title=IVF%20baby%20mix-up%3A%20Parents%20shocked%20to%20find%20DNA%20doesn't%20match%20dad's>,
here<http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/legalnews/69569.html?utm_source=web%20subscription&utm_medium=web&title=Law%20here%20has%20to%20develop%20to%20deal%20with%20such%20cases%3A%20IVF%20baby%20mix-up>,
and here<http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/legalnews/69614.html?utm_source=web%20subscription&utm_medium=web&title=Legal%20rights%20of%20biological%20dad%20unclear>
for
various media reports and analyses). Perhaps a suitable examination
question?

Colin