Don’t think this works, does it?

After the couple had a son together through IVF at the clinic in 2008, a number of embryos were frozen and they signed agreements annually for these to remain in storage.
In October 2010, the mother handed IVF Hammersmith a ‘consent to thaw’ form, forged with ARB’s signature. On the basis of this document, an embryo was thawed and successfully implanted.
‘Unwanted child’
The father said his ex-partner’s dishonesty resulted in the birth of his daughter, an “unwanted child”.
“It’s a very, very difficult situation for me. A beautiful child, a child that everyone would want, a child that I love. But also a child that has brought us so much pain.”
He argued that the clinic should pay for the cost of her upbringing, including private school fees, holidays, refurbishing her bedroom and her wedding.

Isn’t it a basic of English law that having a healthy child simply cannot be a tort which leads to damages?

I dimly recall some case where a women went in for an abortion, they took out only one of two embryos, the second one was born and she could get no damages?

22 thoughts on “Don’t think this works, does it?”

  1. Dunno. Sounds sensible, but then what about compelling a male parent to pay child maintenance? Not damage, but still a substantial expense. And if the male parent was a rapist, add in compensation. In this case, the logic is reversed, but not entirely dissimilar (pregnancy without consent from one partner). I’m not equating this with rape of course. But certainly the male partner here should have redress in the case of fraud and the argument here is just who that redress should be claimed against.

  2. The Pedant-General

    But it’s not the clinic’s fault – it’s the mother’s.
    It’s up to the mother to pay for this child – absolutely nobody else.

    He would not be responsible for the cost of raising a child by someone else so the same basic rule ought to apply here.

  3. He’s the father, despite the fraud, so the CSA will be after him. Perhaps his claim for damages should be against his former partner. The clinic bear some responsibility for not checking with him personally, given the circumstance, before going ahead.

  4. This is surely a classic example for the “hard cases make bad law” aphorism.
    There will probably be no winners here.

    One does worry about the mother’s ethics: maybe she just desperately wanted the child and will look after her very well without imposing on the involuntary father (or is he involuntary-after all he consented to the conception of the embryos?)

    The father may be dunned by the CSA or not. That is, in effect, up to the mother.

    One feels that the whole affair is a further working out of the modern crazy belief that it is a woman’s right to have a child and that men can simultaneously be treated as mere sperm-donors and as responsibility-shirking bastions members of the patriarchy.

  5. He argued that the clinic should pay for the cost of her upbringing, including private school fees, holidays, refurbishing her bedroom and her wedding.

    She is clearly dishonest and a fraudster, but he is taking the fucking piss. Private school fees? Her wedding? Refurbishing her fucking bedroom? I hope the judge called him a cunt and threw him out on his ear.

  6. One feels that the whole affair is a further working out of the modern crazy belief that it is a woman’s right to do whatever she wants

    I think this works better.

  7. No mention of any action against the woman over this fraud, but thank goodness the judge had ‘doubts’ about the clinic’s procedures for obtaining consent, and the clinic of course said that lessons would be learned, and the next woman may well need to be slightly more cunning to get away with it.

    It’s as if the fraudulent consent form was an act of Nature, it struck and was gone, leaving none the wiser.

    Anyway, if there is a single male out there still unable to comprehend that a legal contract is worthless when it comes to his rights vs those of a woman, I hope he realises and runs a hundred miles before signing anything.

  8. A question of law: if a woman obtained sperm without consent (don’t ask) and impregnated herself (again, don’t ask), would the male be liable? If he isn’t liable now by law, what do you reckon his chances would be in a court case with a judge desperate to set a legal precedent? 10/1?

  9. @Rob, October 6, 2017 at 6:34 pm

    A question of law: if a woman obtained sperm without consent (don’t ask) and impregnated herself (again, don’t ask), would the male be liable? If he isn’t liable now by law, what do you reckon his chances would be in a court case with a judge desperate to set a legal precedent? 10/1?

    It’s occurred many times – woman using sperm from blow-job, condom contents…

    No idea about court case results.

  10. Surely the person committing fraud and liable to being sued is the ex-partner. “My wife stabbed me, I want to sue the shop that sold her the knife!”

  11. So Much For Subtlety

    Clovis Sangrail – “This is surely a classic example for the “hard cases make bad law” aphorism. There will probably be no winners here.”

    No it isn’t because this is not a hard case. The mother used fraud to steal this man’s DNA. But British law will not punish a woman for doing so. So he is on the hook for child support.

    She wins. Everyone else loses. This is an outrage. She ought to be in jail.

    Rob – “She is clearly dishonest and a fraudster, but he is taking the fucking piss. Private school fees? Her wedding? Refurbishing her fucking bedroom? I hope the judge called him a cunt and threw him out on his ear.”

    No he isn’t. He is going to have to pay for those things now. Why should he? He did not consent. He thinks someone else should pay. Quite reasonably. As British courts will not punish the woman no matter how outrageous and illegal her actions are, the clinic is the next best thing.

    Rob – “It’s as if the fraudulent consent form was an act of Nature, it struck and was gone, leaving none the wiser.”

    Indeed.

    Rob – “A question of law: if a woman obtained sperm without consent (don’t ask) and impregnated herself (again, don’t ask), would the male be liable?”

    Yes he would. We have been here before.

    http://www.dailymail.co.uk/news/article-1392045/Man-ordered-pay-100-000-children-ex-wife-tricks-clinic-using-frozen-sperm.html

    This is also supposedly how Boris Becker got done over. Allegedly a blow job behind the stairs at Nobu’s in London led to him paying child support for decades. Still in the US it is worse. 12 year old boys have been sexually assaulted by their baby sitter and held liable for child support.

    The courts will not punish a woman for anything while men are responsible for their DNA no matter how it gets there. Consent is just another lie feminists believe in when it is convenient.

  12. So Much For Subtlety

    Isn’t it a basic of English law that having a healthy child simply cannot be a tort which leads to damages?

    No. I wish. We are paying for them.

    http://www.catholicherald.co.uk/news/2014/11/13/women-sue-nhs-after-their-babies-survive-an-abortion/

    Women whose babies have survived abortions are receiving huge compensation payments after suing the NHS for “wrongful births”.

    Six babies have grown into healthy children after surviving attempts to abort them, government figures have shown, while one other child survived the procedure but with brain damage.

    Their parents, however, have been heavily compensated for the wrongful births of their children after they sued the NHS for negligence.

    The seven cases were among 104 settled claims for wrongful birth between 2003 and 2013, and represent 6.73 per cent of the total.

    Although Department of Health figures did not specify how much each of the successful complainants has received, they showed that the average damages payment for a wrongful birth was £473,000.

    Sixty successful claims have yet to be fully concluded but the total paid by the NHS in all the cases has already reached more than £95 million.

    People have sued for “wrongful abortion” in Britain, the US and Australia.

  13. ‘…and they signed agreements annually for these to remain in storage.’

    Is it not a matter for Contract Law, not Tort?

    She breached the contract.

  14. As the aunt of a delightful lad whose life began when he was defrosted, I believe the whole issue of frozen until wanted embryos is a tad precarious.

  15. The guy sued the clinic for breach of contract. That was quite reasonable because it *had* breached the contract – as *he* understood it. BUT they said that they had his signature on the form, so they had abided by the contract.
    One may say “WTF” but some lawyer got them off the hook because it was a good forgery.
    She should go to gaol for forgery. Where is CPS?

  16. Knock yourselves out chaps:

    https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd991125/macfar-1.htm

    Macfarlane v Tayside, Mother could recover damages for pain etc in pregnancy & childbirth after a botched vasectomy, but no recovery was permissible for the costs of raising the child.

    “Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor. If it were necessary to do so, I would say that the claim does not satisfy the requirement of being fair, just and reasonable.” Lord Steyn

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