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Man loses damages claim against IVF clinic over 'forged' consent Man loses damages claim against IVF clinic over 'forged' consent
(about 4 hours later)
A wealthy businessman has failed in his attempt to recover damages from a private IVF clinic, despite a court ruling that his former partner forged his signature to conceive their daughter by the procedure.A wealthy businessman has failed in his attempt to recover damages from a private IVF clinic, despite a court ruling that his former partner forged his signature to conceive their daughter by the procedure.
In a potentially far-reaching judgment at the high court in London on Friday, Mr Justice Jay ruled that IVF Hammersmith had failed in its obligation to ensure consent from both parties, but crucially found the clinic was not negligent and did not have to meet the costs of caring for the man’s daughter. But the man had been morally vindicated, said the judge. In a potentially far-reaching judgment at the high court in London on Friday, Mr Justice Jay ruled that IVF Hammersmith had failed in its obligation to ensure consent from both parties before carrying out the procedure, but found the clinic did not have to meet the costs of caring for the man’s daughter although he allowed the father to appeal.
Jay said the claim had failed due to public policy, which currently stipulates that parents could not be compensated for the birth of a healthy child. Passing judgment at the high court in London, Jay wrote: “Although [the father] has lost this case, my judgment must be seen as a complete personal and moral vindication … The same, of course, cannot be said for [the mother].”
The man, who is in his 50s, said private fertility clinic IVF Hammersmith should be liable for “hundreds of thousands of pounds” needed to care for his daughter, who is six, including a private education, nannies, skiing trips and a Land Rover Discovery used to transport the girl and his eight-year-old son. But Jay said the claim had failed due to public policy, which currently stipulates that parents cannot be compensated for the birth of a healthy child.
The judge found the company had breached its contract in accepting a document which purported to give the man’s consent to using a frozen egg fertilised by his sperm, five months after he said he and his partner had parted ways after a “volatile and rancorous” relationship. The man, who is in his 50s, said IVF Hammersmith should be liable for “hundreds of thousands of pounds” needed to care for his daughter, who is six, including a private education, nannies, her wedding, university education, skiing trips, refurbishing her bedroom and a Land Rover Discovery used to transport the girl and his eight-year-old son.
The man has been given leave to appeal. In a statement following the ruling he said the case had “never been about money; it is about justice.” He wanted to draw attention to the “catastrophic failings of the Human Fertility and Embryology Authority (HFEA), and the unacceptable conduct of fertility clinics, which have grown into multimillion-pound businesses on the back of sharp practices”, he added. The HFEA said it would not be commenting on the case.
The case has significant ramifications for parents seeking IVF and the clinics they turn to, setting a precedent in terms of what circumstances parents of “unwanted” children can claim damages. It comes after a man who had a failed vasectomy was unsuccessful in his bid to sue for negligence after fathering two daughters. The judge found the company had breached its contract in accepting a document which purported to give the man’s consent to using a frozen egg fertilised by his sperm, five months after he said he and his partner had parted ways after a “volatile and rancorous” relationship. The clinic said at no point had it been informed of the couple’s separation.
The father said he was devastated when his former partner, a teacher, emailed him a year after their breakup on Valentine’s Day 2011, writing: “By the way, I’m pregnant.” Although the judge did not find the company liable for damages, he did state concerns about the way consent was obtained by clinics during this period. The fact the clinic had changed the way it obtained consent demonstrated “that more robust procedures were not beyond the bounds of practical possibility”.
He argued that IVF Hammersmith had failed to establish whether he had truly given his consent for his ex to use another embryo to become pregnant. The mother, who is in her 40s, denied forging the signature and says her former partner did give his approval. The case has significant ramifications for parents seeking IVF and the clinics they turn to, setting a precedent in terms of the circumstances under which parents of “unwanted” children can claim damages. It comes after a man who had a failed vasectomy was unsuccessful in his bid to sue for negligence after fathering two daughters.
In the IVF case, the father said he was devastated when his former partner, a teacher, emailed him a year after their breakup on Valentine’s Day 2011, writing: “By the way, I’m pregnant.”
The mother, who is in her 40s, denied forging the signature and says her former partner did give his approval.
But a six-day trial in July was told the father’s signature on the “consent to thaw” form had been forged after someone “traced” his real signature. Dr Audrey Giles, a handwriting expert, told the court she was “99% sure” the document had been falsified.But a six-day trial in July was told the father’s signature on the “consent to thaw” form had been forged after someone “traced” his real signature. Dr Audrey Giles, a handwriting expert, told the court she was “99% sure” the document had been falsified.
The case has already changed procedures in many IVF clinics, many of which now insist on the signing of contracts in clinics or Skype calls to witness the signing of contracts if parents are abroad. It could have further impacts on the regulation of IVF treatment and how frozen embryos can be used years after they are initially stored. In his ruling the judge said the girl’s mother, known only as R, had lied while given evidence and accused her of “mendacious embellishment”, adding: “I have to say that some of her evidence was made up as she went along.”
Passing judgment at the high court in London, Jay wrote: “Although he has lost this case, my judgment must be seen as a complete personal and moral vindication for [the father]. The same, of course, cannot be said for [the mother].” The man and his then girlfriend attended the clinic in 2008 and signed an “agreement for cryopreservation”. They conceived a son by IVF in 2008.
The father, who cannot be named for legal reasons, has previously said that although he loves his daughter, her birth had placed him under an unwelcome financial burden. The couple then returned to the clinic in 2010 to discuss thawing a frozen embryo. The man later said the relationship was already broken beyond repair at this point and he had only attended to “avoid another shouting match”. The judge found he “persuaded himself that the purpose of the consultation with [the consultant] was not to discuss the use of the frozen embryos in the context of R having another baby”.
The man and his then girlfriend attended the clinic in 2008 and signed an “agreement for cryopreservation”. They had a son conceived by IVF in 2008.
The couple then returned to the clinic in 2010 to discuss thawing a frozen embryo. The man later said the relationship was already broken beyond repair at this point and he had only attended to “avoid another shouting match”.
Giving evidence, the father, who has since remarried, told the court he was devastated when he heard his former partner was pregnant.Giving evidence, the father, who has since remarried, told the court he was devastated when he heard his former partner was pregnant.
“I said that’s clever – why would you do that? I’m truly amazed by what you have done,” he said. “I phoned the clinic on February 15 2011 to reveal all. I wanted to know what had gone on. I was in a terrible state. “I said that’s clever – why would you do that? I’m truly amazed by what you have done,” he said. “I phoned the clinic on 15 February 2011 to reveal all. I wanted to know what had gone on. I was in a terrible state.
“My response was, ‘Oh my God, how could this happen?’ I’d never agreed to get her pregnant. My head was exploding. It turned my head upside down. I just couldn’t function. It was just so overwhelming.” He has been granted leave to appeal. “My response was: ‘Oh my God, how could this happen?’ I’d never agreed to get her pregnant. My head was exploding. It turned my head upside down. I just couldn’t function. It was just so overwhelming.”
The father, who cannot be named for legal reasons, has previously said that although he loves his daughter, her birth has placed an unwelcome financial burden on him.
During the trial he said the child was “unwanted” but would be treated like any of his other children. Describing how he felt about the situation, he said: “It’s very difficult to comprehend the situation. You have a beautiful girl who, when she’s in our midst, all she does is remind us of pain. She’s a beautiful girl who doesn’t feel like she’s part of our family. She feels like an alien in our home despite the fact that she’s a beautiful girl.”
The case has already changed procedures in many IVF clinics, many of which now insist on the signing of contracts in clinics or Skype calls to witness the signing of contracts if parents are abroad. It could have further effects on the regulation of IVF treatment and how frozen embryos can be used years after they are initially stored.
Jude Fleming, chief operating officer for IVF Hammersmith, said the clinic was pleased the judge had ruled in its favour and dismissed the claim for damages.
The clinic has changed its practices so that if both parties are not available for the signing of the forms, written consent is followed up with a phone call. She added: “It’s very sad for the people involved, the patients, the children and the staff that were involved in this treatment.”
James Lawford Davies, a partner at Hempsons who represented the clinic, said the court had found that the signature had been properly checked, and was only found to be fraudulent using “sophisticated machinery”.
He added: “Clinics cannot presume that all their patients might be dishonest, but the case highlights the importance of having systems in place to ensure that both partners continue to agree to pursue treatment together, right up until the moment of transfer.”
Praful Nargund, chief executive of ABC IVF, a private London clinic, said industry leaders were now considering whether further steps could be taken to safeguard the consent procedure. “The most crucial appointment, the embryo transfer, which is the point of no return, clinics will be looking at this very carefully,” he said, adding that ideally the father should attend this appointment, but clinics would need to decide whether this was necessary on a case by case basis.
“The core message here is clinics are not sleuths trying to decide if a patient is a patient or not,” he added. “We see both people in person and take reasonable steps to identify them using a passport or driving licence. We inform them at the outset that if there is any change in consent that they inform us straight away.”
The father plans to appeal against the decision regarding damages in the supreme court.