Introduction
The regulation of assisted reproduction is a complex business.Footnote 1 It requires the legislator to draw a delicate balance between public and private interests and to resolve contested ethical disputes. Significant legislative attention is devoted to this across jurisdictions, and with that, a steady degree of academic interest, centring around topics like scientific best practice, the protection of the interests of the resulting child, and the legal attribution of parental status in novel family relationships.Footnote 2 Comparatively little attention, however, is devoted to the question of how the law should approach assisted reproductive procedures that go wrong.Footnote 3 While many jurisdictions have highly sophisticated systems of public law regulation for assisted human reproduction,Footnote 4 private law lags behind. But it is private law that regulates the relationship between the fertility clinic and the patient, and private law – primarily the law of tort and the law of contract – that must protect those individuals when treatment does not go as planned.
This paper explores the proper response of the law of torts to claims arising from mistakesFootnote 5 in assisted reproductive treatment where the claimant is the parent of the resulting child.Footnote 6 It will be argued that a vindicatory model is employed in the analogous scenario of claims for wrongful pregnancy, exemplified in the case of Rees v Darlington Memorial Hospital NHS Trust. Footnote 7 Building on Rees, it will be argued that the law of torts should provide for awards of damages to parents in cases of mistake in reproductive treatment, as long as the purpose of the award is not to compensate the loss suffered by reason of the child's birth, but rather to vindicate the right of the parents to reproductive autonomy. The paper will consider whether a vindicatory model can be achieved by recognising interference with reproductive autonomy as a head of damage in the tort of negligence, but will suggest that the vindicatory goal may be better served by the creation of a new tort which, in contrast to negligence, is actionable per se, and fundamentally concerned with the vindication of rights, rather than the compensation of loss.Footnote 8 The Court of Appeal dismissed the possibility of recovery for loss of autonomy as a separate head of damages in negligence in Shaw v Kovac. Footnote 9 It will be argued that while recovery for interference with reproductive autonomy in negligence would be permissible under the exception acknowledged in Shaw where the case concerns the birth of a child, this decision reinforces the argument that a new, independent, tort may be the more appropriate way to vindicate reproductive autonomy in this context.
The paper begins in Part 1 by introducing the legal obstacles faced by tortious actions in respect of such mistakes. The principle in McFarlane v Tayside Health Authority Footnote 10 will be identified as the key public policy objection to such claims. The paper will go on, in Part 2, to present a vindicatory account of the decision in Rees v Darlington Memorial Hospital NHS Trust,Footnote 11 which qualifies McFarlane, and to argue that this vindicatory approach signposts the correct approach for the law of torts to take in respect of mistakes in reproductive treatment. Part 3 will explore whether the vindicatory approach might be effected through the recognition of interference with reproductive autonomy as a head of damages in negligence, and argue that there are significant conceptual and practical objections to this. Part 4 will argue that the better approach may be to abandon reliance on negligence altogether, and establish a new tort, the parameters of which will be addressed in outline.
1. Mistakes in assisted reproduction and tortious liability
Mistakes in assisted reproduction are more common than one might expect.Footnote 12 The type of mistake in focus in this paper is a mistake made in the course of fertility treatment which results in the birth of a child that is different in some significant respect to the child contemplated by the clinic and the intending parents when entering into the agreement to undergo/provide fertility services. The paradigm example of such a mistake occurs where a clinic implants the wrong embryo into a woman's uterus, or where sperm or eggs from the wrong donor are used in the course of fertilisation.Footnote 13 The consequence of a mistake of this kind is that the resulting child is not the genetic child of the intending parents – or of the intended donor – but the genetic child of someone else. The facts of the Northern Irish case of A (A Minor) and B (A Minor) v A Health and Social Services Trust Footnote 14 serve as a useful example. In that case the plaintiffsFootnote 15 were two children born through IVF treatment involving sperm donation. A mix-up in the laboratory led to the wrong sperm being selected, and instead of sperm from an ethnically white donor, sperm from a donor whose ethnicity was described as ‘cape coloured’ was used.Footnote 16 The plaintiffs were born with skin markedly different to their parents, and also markedly different to each other. The plaintiffs argued this had caused the family huge difficulties, that the children had been the subject of racial slurs and questions insinuating that they were adopted or that their mother was having an affair. The children's claim failed primarily on the basis that the plaintiffs had not suffered loss: the difference in skin colour was not a compensable harm.Footnote 17 The parents also issued proceedings against the clinic in their own names. Though the parents’ claim was settled, it provides a useful starting point for analysis of this issue.
It should be noted that a different fact pattern involves a mistake on the part of a clinic which means that a patient is denied the opportunity to have a child. Such a mistake occurred in Yearworth v Bristol NHS Trust,Footnote 18 where the defendant hospital was responsible for wrongfully destroying the claimants’ cryopreserved sperm. Though such cases may potentially be addressed through the same mechanism as that proposed in this paper, they are not the primary focus. Nor is this paper concerned with minor mistakes that have no discernible impact on the outcome of the fertility treatment, for example where a scheduling error leads to a procedure such as egg collection being carried out on a different day to that originally planned.Footnote 19 Recent years have seen the courts deal with cases arising from clerical and record keeping errors on the part of clinics which led to intended parents not being recorded as the legal parent of a child.Footnote 20 Again, these mistakes are not within the scope of this paper as they concern parental status, rather than the resulting child. However, the approach proposed in this paper would in principle extend to mistakes occurring in the course of fertility treatment that result in damage to gametes or embryos, or to negligent carrying out of pre-implantation genetic diagnosis. In the context of England and Wales and Northern Ireland, the latter type of mistake is addressed by amendments to the Congenital Disabilities (Civil Liability) Act 1976 implemented by Human Fertilisation and Embryology Act 1990.Footnote 21 In some other common law jurisdictions, such as Ireland, there is no analogous legislation and the approach proposed here might be of relevance in cases litigated in those jurisdictions. Finally, the proposed approach could also extend to mistakes that lead to the birth of a child without the consent of one of the parents, as was the case in ARB v Hammersmith IVF,Footnote 22 discussed below. The unifying thread in all the cases in contemplation is that the loss or damage identified in the tortious action is the resulting child herself, or some identifiable feature of that child.
The question of whether parents can recover under the law of torts for mistakes of this kind has not been fully ventilated in the superior courts of England and Wales, or Ireland.Footnote 23 Such claims, if brought as a medical negligence action, face two principal hurdles. First, there is a doctrinal problem in characterising the injuryFootnote 24 suffered as actionable. The law of negligence typically permits recovery in respect of physical damage, or damage to propertyFootnote 25 and allows for recovery for mental injury in only limited cases.Footnote 26 Mistakes in reproductive treatment do not give rise to loss which fits neatly into a recognised category. Secondly, such claims face a significant public policy hurdle. A successful claim would entail an acceptance that the child – or the degree to which that child was worse than the child that was intended – is a compensable loss for the purposes of the law of negligence. This runs directly contrary to the principle in McFarlane v Tayside Health Authority,Footnote 27 which held that the birth of a healthy child cannot ground an award of damages in the law of torts.
McFarlane was a wrongful pregnancy action,Footnote 28 in which the claimants sought to recover the costs of raising their fifth child, who had been born subsequent to a vasectomy operation in respect of which the claimants had been negligently advised.Footnote 29 Historically, the courts had allowed recovery for rearing costs in wrongful pregnancy,Footnote 30 but in McFarlane, this policy was reversed.Footnote 31 The diverse reasons for this refusal centre around a number of themes.Footnote 32 Some members saw a moral objection to the awarding of damages in respect of a healthy child.Footnote 33 Lord Steyn approached the matter as a one not just of corrective justice, but also of distributive justice.Footnote 34 If, he said, you asked the commuter on the London Underground whether they thought the parents of an unwanted but healthy baby should be able to sue a doctor in this instance, the overwhelming response would be that they should not. A different objection was that the birth of an unwanted child conferred benefits as well as detriments, causing a problem of incommensurability: it was effectively impossible to properly calculate the cost of raising a child and measure that against the benefits conferred by having that child.Footnote 35 Lord Millett's view of commensurability fused with the more fundamental holding that the child should not be regarded as a compensable damage. For him, the Court's view on commensurability had to be informed by its moral role in society. While he accepted that in reality a baby brings both benefit and detriment, the law, speaking for society at large, had to take the view that a baby was a blessing.Footnote 36
McFarlane has obvious implications for claims by parents in respect of mistakes in reproductive treatment.Footnote 37 If there is a moral objection to paying compensation in respect of a child who was not wanted at all then surely there is an even greater problem with awarding compensation in respect of a child who was wanted, but who is different in some way to the child that was anticipated. In the case of ACB v Thompson Medical Pte Ltd Footnote 38 the Singapore Court of Appeals applied McFarlane in the context of assisted reproductive treatment. This case involved a claim on the part of a woman who underwent IVF treatment, in which she intended to have her eggs fertilised with the sperm of her husband. The woman was Singaporean Chinese, and her husband was a German man of Caucasian descent. The clinic negligently fertilised her eggs with the sperm of an unknown donor, of Indian ethnicity. The woman brought a claim in negligence for the costs of raising the child.Footnote 39 There are two important aspects to the judgment: the claim in respect of the costs of raising the child, and the court's development of a new head of damages for ‘loss of genetic affinity’.Footnote 40 As to the costs of raising the child, the Court adopted the McFarlane principle for two central reasons. First, the obligation to maintain one's child is an obligation at the heart of parenthood and cannot be a legally cognisable head of loss, and secondly, to recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the claimant in a position where her personal interests as a litigant would conflict with her duties as a parent. The latter objection concerns the problem of parents in such cases having to argue before a court that their child has caused them a net loss. The Court's sophisticated and persuasive analysis suggests that McFarlane is likely to cause a problem for such claims in courts across the common law world
The McFarlane principle was recently extended into the law of contract in the case of ARB v IVF Hammersmith.Footnote 41 Though this is a contract law case, it has particular relevance to the matter at hand because it involved a claim for the costs of raising a child born as a result of a mistake on the part of a fertility clinic. The claimant, ARB, and second named defendant, R, were a man and woman who had undergone IVF treatment leading to the birth of a son. In the course of that treatment they froze a number of embryos. At the time when their relationship was coming to an end, R proceeded to have a second child using one of the frozen embryos after forging ARB's signature on the ‘Consent to Thaw’ form. ARB sued the clinic for breach of contract, on the basis that they had failed to obtain his consent to the procedure, and he sought to recover the pecuniary losses relating to the costs of raising the resulting child. While ARB succeeded in his primary case against the clinic for breach of contract, the High Court held that he could not recover damages for the cost of the child's upbringing on grounds of policy. This was upheld by the Court of Appeal, which concluded that ‘the legal policy which prevented recoverability of the cost of the upbringing of a healthy child in the tortious claims in Rees and McFarlane applies to ARB's claim for breach of contract’.Footnote 42 Notably, the Court of Appeal did not address whether there was any difference in principle between McFarlane/Rees type cases and cases arising from mistakes in assisted reproduction, apparently assuming that there was no need for such analysis. The case seems, therefore, to provide relatively clear authority for the proposition that the McFarlane principle will be a barrier to recovery in tortious claims arising from IVF where damages are claimed for the cost of raising a child.Footnote 43
2. Rees v Darlington Memorial Hospital and vindicatory damages
It would seem that McFarlane poses an insurmountable obstacle to recovery for mistakes in IVF that lead to the birth of a healthy child. However, the seeds of the solution can be found in the case of Rees v Darlington Memorial Hospital NHS Trust,Footnote 44 where the House of Lords added a very significant ‘gloss’ to McFarlane. Rees demonstrates that when these cases are seen through the lens of vindication rather than loss, the public policy objection can be surmounted.
(a) The Rees ‘gloss’
Karina Rees had a severe and progressive visual disability such that she felt she would not be able to cope with motherhood and for that particular reason wished to be sterilised. After a negligently performed sterilisation, Ms Rees became pregnant and gave birth to a healthy son. The House of Lords stood by its holding in McFarlane. Footnote 45 A complicating factor was that since McFarlane, the Court of Appeal had in Parkinson v St James and Seacroft University Hospital Footnote 46 acknowledged a qualification to the principle, whereby the costs of raising a child born with a serious disability were recoverable, even though the defendants caused the conception but not the disability.Footnote 47 The House of Lords was now presented with a further factual variation: a disabled mother rather than a disabled child.Footnote 48
In Rees the Court held that the costs of raising the child were not recoverable but that a conventional award of £15,000 could be made. This was to compensate the mother for what she had lost in being denied ‘the opportunity to live her life in a way that she had wished and planned’.Footnote 49 This award was not, according to Lord Bingham, designed to be compensatory, and would not be the product of calculation, but nor would it be derisory or nominal. Lord Bingham found the award was to apply across the spectrum of wrongful pregnancy cases, including those where either the child or the mother was disabled. After Rees, this conventional sum of £15,000 can be recovered in all such cases.Footnote 50 Lord Millett had in McFarlane, proposed the award of a nominal sum of £10,000, but his suggestion had not, on that occasion, found favour with the rest of the court. In Rees he reiterated that view, describing the award as being linked to personal autonomy. He commented:
I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damages, not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law. The loss of this right is not an abstract or theoretical one.Footnote 51
The Court registered strident dissents on the conventional sum from Lord Hope and Lord Steyn. Lord Hope criticised it as a departure from the normal common law approach to damages, and challenged the assertion that it was not compensatory in any sense – if the award was not punitive, then it had to be compensatory.Footnote 52 In his view, the conventional award was not underpinned by any consistent or coherent ratio.Footnote 53 Lord Hope further criticised the figure of £15,000 as inadequate, and verging on derisory.Footnote 54
(b) Understanding Rees: vindicating rights rather than compensating loss
The conclusion in Rees has been described as meaningless and incoherent; a sort of compensation prize. Priaulx suggests it might be a ‘grumbling – and most certainly derisory – concession that McFarlane might have been decided differently’.Footnote 55 While Priaulx sees some merit in framing these claims as injury to autonomy, she argues that the only proper remedy must then be an award to compensate for the cost of raising the child.Footnote 56 In her view, the conventional award pays mere lip service to the concept of autonomy and fails to adequately compensate the wrong done to the claimants in these cases, whose lives may be radically altered by the events in question. Mason provides a qualified welcome to the Rees award, though he expresses doubt that £15,000 is sufficient, and proposes that a larger sum based on a proportion of the total costs of raising the child might be preferable.Footnote 57 Even were that the case, he wonders if it would have been better for the House of Lords to have ‘taken the bull by the horns and … allowed room for realistic compensation’.Footnote 58 More recently, Keren-Paz has voiced a similar criticism in analysing Rees alongside other cases involving injury to autonomy.Footnote 59 He criticises the court in Rees for deviating from the principle of full compensation. Ultimately, the major criticisms of Rees are premised on an underlying assumption that the purpose of the award in Rees should have been to compensate the claimant for her loss. This focus on compensation obscures the true rationale of Rees, which is vindication. If the conventional award is seen as a vindication of the rights of Karina Rees – specifically a vindication of her right to reproductive autonomy – it takes on a new complexion entirely. To interrogate this view, and produce a thorough account of why the Rees approach makes sense, one must look more deeply at theories of vindication as a function of the law of torts.
(i) Vindication and the law of torts
Criticisms of Rees typically assume that the purpose of the law of torts, and of the tort of negligence in particular, should be to compensate loss. The loss model, which underpins these criticisms, says that a defendant should be liable for causing loss to the claimant unless there is a good reason why not.Footnote 60 Another account of the law of torts states the purpose of the law of torts is to provide redress for the infringement of rights.Footnote 61 This model says the defendant should be liable to the claimant where he has infringed a right of his, or to phrase this differently, wronged him, or breached his duty towards himFootnote 62. Stevens goes so far as to argue that protection of rights is the dominant purpose of the law of torts.Footnote 63 Mirroring the loss versus rights debate, a debate takes place concerning the purpose of damages. Some commentators argue that damages are almost always compensatory, and thus based on consequential loss,Footnote 64 while others take the view that damages are designed not to compensate loss but as a substitute for the right which has been infringed. Stevens describes such damages as substitutive damages, and distinguishes them from consequential damages which are awarded in respect of the loss which is consequential upon the infringement of the right.Footnote 65
If torts protect rights, then tort law actions vindicate those rights, and damages are a means of achieving that vindication.Footnote 66 Smith explains a vindicatory approach as focusing on the ‘wrongness of the infringing action’.Footnote 67 The award is not intended to attempt to undo the wrong, but rather ‘to make it clear to the world, or more precisely to the two parties, that the wrong was a wrong and should never have happened’.Footnote 68 Endorsing vindication in the law of torts does not necessarily mean rejecting the role torts play in compensating loss. In fact, both positions can quite happily co-exist. Varuhas, for example, takes a median position in both the broader debate about the law of torts, and the narrower debate about the purpose of damages.Footnote 69 His approach to the purpose of the law of torts is pluralistic, rejecting the proposition that the law of torts can be explained by reference to a single principle.Footnote 70 Varuhas argues that the loss model explains certain aspects of the law of torts, while the rights model explains other aspects. His view is that vindication of rights is the purpose of certain – but not all – torts, and also that some torts have both compensatory and vindicatory purposes.Footnote 71 Negligence is the quintessential example of a tort with the primary function of compensating loss. Damage, as it is often said, is the gist of negligence.Footnote 72 By contrast, Varuhas points to torts which are actionable per se as the paradigm case of torts which exist primarily to vindicate rights, or interests. Such torts are actionable in the absence of loss and, therefore, their purpose is not to compensate loss. Rather, torts actionable per se such as trespass to land, false imprisonment and defamation developed to protect and vindicate ‘those interests fundamental to English society’.Footnote 73 Though damages for consequential loss are recoverable in respect of these torts, consequential loss is not a constituent element. Their primary function is vindicatory.Footnote 74 In the vindicatory torts it is possible to recover damages not just for factual loss but also for the wrongful interference with the protected interest.Footnote 75 Where only the later form of damages is awarded, this illustrates the primary vindicatory function of the tort.Footnote 76
Vindication as a purpose of the law of torts, and vindicatory damages in particular, are not without controversy.Footnote 77 In the case of Lumba v Secretary of State for the Home Department Footnote 78 a six-judge majority of the Supreme Court of the UK refused an application for vindicatory damages for false imprisonment. Describing vindicatory damages as an ‘unruly horse’, Lord Dyson found that the purpose of vindicating a claimant's common law rights was met by an award of compensatory damages, including nominal damages where no substantial loss is proved; declaratory relief, and where appropriate, an award of exemplary damages.Footnote 79 A three-judge minority of the Court disagreed with this position and found that vindicatory damages should be awarded. The majority decision has been the subject of significant criticism, and is believed by many commentators to have profoundly misunderstood the place of vindication in tort law.Footnote 80 Whether or not Lumba was wrongly decided, and whether it is overruled in the future, it is not in conflict with Rees, and does not preclude a vindicatory award in cases of mistake in reproductive treatment. Lord Dyson's comments were clearly confined to a vindicatory award over and above the general award to the claimant. In cases of mistake in reproductive treatment – as in Rees – the vindicatory award is the primary sum claimed, because the general award is deemed not to be recoverable on grounds of public policy.Footnote 81
This paper adopts Varuhas’ pluralistic position as regards the role of vindication in the law of torts, namely, that certain torts have a primarily compensatory function while other torts have a vindicatory function and that both of these are valid aspects of the law of torts. Similarly, some damages have a vindicatory function while others have a loss compensation function, and some torts provide for both kinds of damages. This proposition will be used to engage in three analytical tasks: first, to reframe and defend Rees in terms of vindication of the right to reproductive autonomy; secondly, to argue that tortious vindication of reproductive autonomy is the correct approach to take to actions for mistakes in reproductive treatment; and thirdly, to explore the two ways in which the law of torts may effect such vindication.
(ii) Framing and defending Rees as vindication
The core criticisms of Rees are heavily influenced by the view that the purpose of the law of torts is to compensate loss. Priaulx welcomes the emphasis on autonomy,Footnote 82 but believes the conventional award does not adequately respond to the harm that arises in cases like this. She refers to the need for law to ‘provide a convincing account of the loss in these cases’, by reference to both the ‘specific interests individuals sought to protect and the impact on their lives as parents’.Footnote 83 Similarly, Mason is open to awards based on autonomy, but his emphasis on ‘realistic compensation’ conveys a focus on the consequences of the loss of autonomy, rather than on the interference with the right itself. Both commentators feel that Rees fails to adequately compensate the real losses that flow from the interference with autonomy.
A different way to look at Rees is through the lens of vindication. While the House of Lords was not of the view that Karina Rees had suffered a compensable loss, the Court clearly felt that she had been wronged through the negligence of the clinic. The conventional award was, therefore, an award in respect of that wrong rather than an award designed to compensate the loss that flowed from that wrong. This is not, necessarily, to say that no factual loss flowed from that wrong, but rather that any loss which did flow from the wrong was not a compensable loss from the perspective of the law of torts. Criticisms of Rees imply that there is no coherent basis for making an award in respect of the wrong done to Karina Rees, but then refusing to compensate the loss that flows from that. A coherent basis can be found in the distinction between damages to vindicate the claimant's right and damages to compensate the loss that flowed from that interference. To adopt the language of Stevens, the court awarded substitutive damages in Rees, but refused to award consequential damages. This analysis explains Rees, and furthermore, provides an account of why it is genuinely a ‘gloss’ on the McFarlane principle, rather than a fundamental undermining of the earlier decision.
McFarlane and Rees are best understood not as saying that those claimants did not suffer loss, but rather that they did not suffer loss that the law will recognise and compensate. Framed in these terms, the conventional award assumes legitimacy and coherence. One can say that for all the above reasons claimants in these cases should not receive compensation for loss, but still retain a lingering sense that they deserve something. The question is, what drives the intuition that such claimants deserve an award of some kind, if they have not suffered a compensable loss? In fact, these claimants have suffered both a wrong and a loss. The wrong is the interference with their right to reproductive autonomy. It is legitimate, therefore, to award damages to vindicate that right. It is perfectly coherent to make a conventional award which is substitutive or vindicatory, but to decline to make an award in respect of consequential loss, on the public policy grounds outlined above. Analysed in this way, the conventional award is no paltry consolation prize, but rather a considered, fair, award in respect of the wrong done to the claimant. As well as addressing the core moral objection to branding a child as a loss, a modest conventional award avoids the distributive justice concerns associated with saddling health care providers with the costs of raising a healthy child. It also avoids the problem of incommensurability, because it does not aim to measure loss.Footnote 84
Torts theorists have argued that Rees is an example of an award to vindicate rights. Stevens observes that as the conventional sum was described as non-compensatory, it must have been a form of substitutive damages,Footnote 85 but subsequently observed that a preferable formulation would have been for the Court to describe the award as being made in respect of the wrong, rather than in respect of the ‘loss of autonomy’.Footnote 86 Similarly, Varuhas has pointed to Rees as providing an example of an award which is vindicatory in nature, commenting that though the decision was described as ‘radical’, ‘heterodox’ and ‘contrary to principle’ it evinced the conception of vindication.Footnote 87 Importantly, Varuhas observes that the conventional award in Rees was a highly unorthodox departure in the tort of negligence, which is firmly focused on compensation rather than on vindication.Footnote 88 He describes the outcome in Rees as evidence of the law acting on a ‘vindicatory impulse’ where it must ensure a basic interest does not go without a remedy.Footnote 89
Edelman, who acknowledges the ongoing controversy that surrounds vindicatory damages, says that there is no way to explain Rees other than as vindication.Footnote 90 Nolan has also explored the argument that the Rees award is directed at rights vindication rather than at compensating loss.Footnote 91 While he notes that the court used the language of rights in making the award, he ultimately rejects it in favour of the compensatory account of the award on the basis that the requirement of loss is essential to the tort of negligence.Footnote 92 Though Nolan presents an account of negligence which may be tidier and more elegant, it fails to account for the language of rights which is used in Rees, and furthermore fails to explain why the sum was not calculated by reference to loss. Ultimately, Varuhas’ view is more convincing, namely, that negligence is a tort which occasionally adopts a vindicatory approach to damages.
When the decision in Rees is analysed through the lens of vindication, many key objections to it are addressed. The public policy concerns raised in McFarlane are valid, but they do not arise in respect of an award which is purely vindicatory in nature, and which expressly excludes consideration of consequential loss.
Two minor problems with the Rees/McFarlane status quo should, however, be acknowledged, and these aspects are not defended. First, as has often been observed, £15,000 is a miserly sum. It would be perfectly possible to choose a higher award, and yet steer well clear of the distributive justice concerns raised in relation to damages for the raising of the child.Footnote 93 Second, a separate criticism of the conventional sum is that it is fixed. While the account presented here would not allow for variation that reflects consequential loss, it would allow for variation where that reflects the degree of interference with the right. In applying an approach based on Rees to mistakes in reproductive treatment, these aspects of the status quo will not be adopted.
(c) Rees, vindication and mistakes in reproductive treatment
Turning back to the core purpose of this paper, how does Rees help solve the problem of tortious liability for mistakes in assisted reproduction? As noted at the outset, there are two key problems with making an award of damages in these kind of cases: the problem of how to characterise the injury, and the public policy objection to regarding the child as a compensable loss. In Rees lies the basis of the response on both fronts. First, Rees recognises injury to the right to autonomy, or the interest in autonomy, as a compensable injury. Secondly, Rees allows for an award of damages in respect of that injury without characterising the resulting child as a loss. The right or interest interfered with by the defendant in Rees was the right to, or interest in, reproductive autonomy. This is precisely the same right or interest that is interfered with in cases of mistake in reproductive treatment.
The efficacy of the vindicatory approach may be illustrated by applying this framework to the parents’ claim on the facts of A and B,Footnote 94 the claim which did not proceed to trial. In that case, there were strong public policy objections to finding that the parents had suffered a compensable loss. As well as the McFarlane objection, there was the additional racial element. It would have been most unseemly for the Court to attempt to quantify the loss the parents suffered by having children that were not quite what they wanted. Despite that, one might feel that some award – even a modest one – would have been appropriate. What was appropriate was an award, like that in Rees, to recognise the wrong done to the parents; an award of substitutive damages rather than consequential damages, to recognise the interference with the right in question, and the wrong done to the parents. Such an award would entail no judgment that the children were in any way defective, or that they, by reason of their race, constituted a compensable loss. The right being vindicated is not the right not to have children of a certain ethnicity, but rather the right to control of one's gametes in reproduction, a core aspect of reproductive autonomy.Footnote 95 The vindicatory model avoids the pitfalls encountered when one assesses A and B through the prism of loss.
The sense that such an award would be just is borne out by the real-life settlement in A and B. The judgment records that council for the clinic made clear that the clinic had admitted liability to the parents and was willing to negotiate settlement, and that it did not deny that ‘something other than what was hoped for or intended had happened to them’.Footnote 96 While the judge would make no comments on the validity of an argument that the parents had a legitimate expectation in respect of the treatment, he recognised that the argument could be made and that the defendant had taken the view that there may well be a role for a conventional award in such cases. In ARB v IVF Hammersmith, ARB did not seek the conventional sum awarded in Rees as an alternative to his primary claim for upbringing costs. The High Court noted this and commented that if he applied to amend his pleadings to include such a claim, this would be considered by the Court.Footnote 97 This seems to leave open the suggestion, at the very least, that had this claim been made the Court might have regarded the award of a conventional sum as the appropriate remedy.
There are two ways in which the law of torts might make provision for an award of damages to vindicate the right to reproductive autonomy of those who encounter mistakes in reproductive treatment. Thus far, the scant commentary on this issue has focused on the first of those avenues: that reproductive mistakes might be addressed through an award in respect of interference with reproductive autonomy as a head of damages in negligence. Part 3 will explore this possibility. Part 4 will explore a more radical option: that the better way to address reproductive mistakes may be through a distinct tort designed to protect reproductive autonomy exercised in the course of reproductive treatment.
3. Vindicating reproductive autonomy through the tort of negligence
With its broad remit, negligence is the tort that at first glance seems best placed to accommodate novel mistakes in reproductive treatment. This approach would mean that interference with reproductive autonomy arising from a mistake in reproductive treatment would become a recognised head of damage in negligence. Consistent with the limited endorsement of Rees advocated above, a variable award is proposed. This variation in the award could be justified by reference to the degree of interference with the right, but not by reference to the loss incurred. The award would be expressly vindicatory in nature.
The option of addressing mistakes in reproductive treatment through negligence has received some academic attention, but commentators have adopted a compensatory rather than a vindicatory rationale.Footnote 98 Priaulx has explored the prospect of using the law of negligence to address mistakes in reproductive treatment.Footnote 99 For her, both Yearworth and Rees entail the same kind of harm: the frustration of reproductive plans. Priaulx's broader argument is that negligence, in adopting its narrow, formal, concept of damage, fails to adequately compensate psycho-social harms.Footnote 100 Negligence is inadequate, Priaulx argues, because of its failure to recognise and compensate the full range of harms experienced by victims of reproductive injury. She points to hybrid injuries, which share some features with ordinary personal injury claims, but resonate in a kind of harm that will not fit into an orthodox category, and argues that the concept of actionable damage in negligence must be expanded to recognise such complex harms.Footnote 101 Priaulx characterises the damage as compensating loss rather than as vindicating the right to reproductive autonomy. Her view is, therefore, different to that proposed here. This conversation intersects with a broader debate about loss of autonomy as a head of damage in negligence. This section will begin by considering that wider debate, and will argue that concerns raised in that broader context raise objections to using negligence as a mechanism to vindicate the right to reproductive autonomy. It will then go on to consider an alternative formulation for the head of damage in negligence: ‘loss of genetic affinity’, which was compensated in ACB v Thompson. Footnote 102
(a) Loss of autonomy as a head of damage in negligence
Loss of autonomy has not, as yet, been generally recognised as a head of damages in negligence. Commentators are divided as to whether its recognition would be a positive development for the law of negligence, and two recent court decisions have highlighted the problems with such a development.Footnote 103 Purshouse, for example, argues that there is no way in which damages may be awarded for loss of autonomy in the tort of negligence without distorting established and cogent legal principles.Footnote 104 He also warns that recognising autonomy as a head of damage would undermine the restrictions that the law places on recovery for other types of damage. Keren-Paz, by contrast, defends autonomy as a head of damage in negligence. While rejecting the argument that recovery for loss of autonomy is necessarily incoherent, he argues that doctrinal incoherence should not prevent the law making an award that is just, and he specifically points to Karina Rees as an example of such a ‘just’ case.Footnote 105 This paper does not take the position that loss of autonomy should never be compensated in negligence – indeed, the judgment in Rees is defended. Rather, it is argued that both the academic commentary and recent case law cast some doubt on the viability of autonomy as a head of damage in negligence, and thus on the prudence of using this to address cases of mistake in reproductive treatment.Footnote 106
Though its reasoning has been the subject of academic criticism,Footnote 107 the judgment of the Court of Appeal in Shaw v Kovac Footnote 108 highlights some of the core objections to autonomy as a head of damage in negligence. The case concerned a medical negligence action in respect of a failure to make proper disclosure to a patient in advance of cardiac surgery, after which the patient died. At trial, the court accepted that had the deceased been properly informed he would not have proceeded with the surgery. On appeal, the claimant sought a separate, additional award of damages in the sum of £50,000 to reflect the wrongful invasion of the patient's autonomy.Footnote 109 The Court of Appeal refused to make such an award.Footnote 110 The claim was principally formulated as a claim for compensatory damages in respect of the invasion of the deceased's personal autonomy. The court found that there was no basis for such an award.Footnote 111 The Court's view was that the law addresses a failure of a doctor to secure adequate consent through the tort of negligence. There was no basis for an additional award over and above what had already been compensated. Interestingly, the court accepted that such cases might involve a breach of human or fundamental rights, but said that these rights underpin the tortious action:
Nevertheless the very existence of such rights – in whatever language one actually describes them – has always been the foundation of and rationale for the existence of a duty of care on doctors to provide proper information.Footnote 112
An additional award was not necessary to compensate for interference with those rights, but if a person's suffering was to be increased by knowing that his personal autonomy had been invaded through want of informed consent, then that could be reflected in general damages.Footnote 113
The claimant argued in the alternative in favour of a conventional award, on the basis of Rees, and this too was rejected. Importantly, the Court found that Rees was an entirely different kind of case to Shaw, because it was one in which on ordinary negligence principles the claimant would have been entitled to an award of damages, but was debarred from this because of public policy concerns. In Shaw, by contrast, the claimant had already succeeded.Footnote 114 Given this refinement, Shaw probably does not exclude claims for loss of autonomy arising from mistakes in reproductive treatment. Such cases would, like Rees, involve a claimant being denied recovery on public policy grounds, ie that the child cannot be branded a compensable loss.Footnote 115 The more significant objection raised by Shaw, however, is the argument that protection of autonomy is more properly thought of as a basis for the existence of a tortious action, and therefore as informing an award of damages made for commission of that tort, rather than a head of damages in and of itself. This objection goes directly to the question of whether negligence should be expanded to vindicate interference with reproductive autonomy arising from mistake in reproductive treatment.
The Singapore Court of Appeals took a similarly sceptical approach to loss of autonomy as a head of damages in the case of ACB v Thompson Medical Pte Ltd. Footnote 116 Having decided that upkeep costs were not recoverable, the Court expressed the view that it had some discomfort with the result whereby despite admitting liability the defendant was liable for only a small award.Footnote 117 The Court went on to consider whether it would be appropriate to make an award to the claimant in respect of her loss of autonomy, noting that an award in respect of interference with autonomy had been made in Rees. It ultimately decided that such an award should not be made. Specifically, the Court rejected the notion of loss of autonomy as a general head of damage, but stated that a loss of autonomy could ‘underlie a more specific award of damages in the context of a negligent interference with the claimant's reproductive plans’.Footnote 118 The Court's reasons for rejection were threefold: first, the concept of ‘autonomy’ was too nebulous and too contested a concept to ground a claim; secondly, the notion of loss of autonomy did not comport with the concept of damage in the tort of negligence; and thirdly, the recognition of such a head of damage would undermine existing control mechanisms for recovery in the tort of negligence.Footnote 119
The Court's second objection engages directly with the rights versus loss debate that lies at the centre of the law of torts. The court commented that vindicatory damages pose a fundamental challenge to negligence principles, and went so far as to say that the concept of vindicatory damages was not just out of sync with the tort of negligence, but with ‘the common law in general’.Footnote 120 The latter claim is patently not sustainable: as discussed above there is substantial consensus around vindication having some place in the law of torts. The objection to vindication in the tort of negligence is, however, more valid. Negligence is a quintessentially compensatory tort and Rees is universally acknowledged to be highly unusual in its departure from that framework.Footnote 121 In that sense, the Court highlights a problem with using negligence to address a breach of rights.
The Court's first and third objections to autonomy as a head of damage in negligence flowed from its concern that autonomy is ‘too nebulous and contested a concept’, and the related point that autonomy is ‘over-inclusive’ and would allow for the circumvention of existing control mechanisms in the law of torts, echoing Purshouse's view.Footnote 122 The court did not consider narrowing the head of loss to reproductive autonomy rather than autonomy, so arguably these aspects of the Court's objection might be addressed to some extent through that narrower definition. However, as discussed below, problems of coherence and control would persist even if that approach were adopted.
(b) Loss of genetic affinity
While the Court in ACB was not prepared to recognise loss of autonomy as a standalone head of damage, it did craft an innovative solution to allow for the award of damages, which merits close consideration. The Court made an award of damages in respect of what it characterised as the ‘loss of genetic affinity’ which the claimant had suffered.Footnote 123 In the Court's view, this was the ‘real loss’ involved. This loss, the Court commented, was the ‘result of a complex amalgam of biological, social, ethical, and historical factors’.Footnote 124 It concluded:
[T]he Appellant's interest in maintaining the integrity of her reproductive plans in this very specific sense – where she has made a conscious decision to have a child with her Husband to maintain an intergenerational genetic link and to preserve ‘affinity’ – is one which the law should recognise and protect.Footnote 125
The award in ACB certainly presents some advantages. Formally, it avoided branding the child itself a compensable loss, thereby avoiding the central obstacle presented by McFarlane. The Court engaged deeply with the seriousness of the mistake made by the clinic and the impact of that on the claimant. Taking an approach that is reminiscent of Priaulx's call for the law of negligence to recognise psycho-social harms, the Court fully appreciated the gravity of loss of affinity and crafted a head of loss to reflect that.
Yet the genetic affinity approach has its drawbacks. First, as a head of damages ‘loss of genetic affinity’ is under-inclusive, because it does not cover all of the potential situations in which mistakes in reproductive treatment occur. It would not, for example, allow for any compensation for the parents in A and B, who had no expectation of paternal genetic affinity.Footnote 126 If the law of torts is to develop to accommodate cases of mistake in reproductive treatment it should do so in a way that is sufficiently flexible to accommodate all such incidents. Second, the decision in ACB is lacking in that it fails to recognise a vindicatory aspect to the award, and instead characterised the purpose of the award in purely loss-based terms. While the court accepted that the principle of autonomy could underpin a more specific award, it did not expressly connect this with the claimant's interest in genetic affinity. Clearly, the concept of genetic affinity in play was intimately connected to the right to autonomy, given that it concerned the claimant's decision to reproduce with a specific person of her choosing, her husband, rather than with someone else. This undue focus on the loss suffered by the claimant rather than the interference with her rights led the Court into real difficulty when it came to calculate the quantum of damage. Apparently unsure as to how to fix upon a figure for loss of genetic affinity, the Court decided to award 30% of the cost of raising the child. This was based on the view that the figure had to be substantial due to the ‘seriousness of the Appellant's loss’.Footnote 127 The Court used the costs of raising the child as an anchor figure, despite not being able to provide any rationale for that whatsoever. This emphasis on loss at the expense of vindication meant that the Court drifted very close to calculating the loss that the claimant had suffered by reason of having one child rather than another, though avoiding this kind of calculation was precisely the reason that it refused upkeep costs in the first place.
(c) Conclusion on vindication through the tort of negligence
Negligence can, in theory, allow for a vindicatory award of damages which might be appropriate for cases of mistake in reproductive treatment, but there are good reasons to believe it is not an easy fit. ACB demonstrates the difficulty with avoiding any element of compensatory analysis in calculating quantum when the concept of ‘loss’ is employed. The language of loss inevitably veers very close to attempting to calculate the quantum of loss sustained by reason of the birth of the child. The prevalence of the language of loss is perhaps because these comments are made in the context of negligence actions, and negligence, of all torts, is perhaps the most clearly premised on the loss model.Footnote 128 In the absence of damage, there is no claim for negligence. While Rees suggests that purely vindicatory damages may be acceptable in negligence in very limited circumstances, the courts have been reluctant to recognise Rees-type awards in new contexts.Footnote 129 Where the entire purpose of damages is vindicatory rather than compensatory, these damages might be better accommodated within a cause of action which is primarily vindicatory in purpose.
Both ACB and Shaw evince a concern that autonomy as a head of damage is simply too broad, incoherent and increasingly unwieldy, raising serious floodgates concerns as well as concern for the internal coherence of the law of negligence. In trying to avoid that risk, ACB fixes on a narrower head of loss of genetic affinity, which is problematically under-inclusive. There is no doubt that the expansion of negligence over the latter half of the twentieth century was radical, and potentially troubling. Cases like McFarlane and Rees have been used to illustrate just how ‘far negligence law has come adrift of principle’.Footnote 130 There is a well-founded concern, therefore, that extending negligence to deal with these cases might compound the floodgates problem, as well as further undermining the theoretical integrity of the tort. One way to address this concern might be to limit recovery to interferences with reproductive autonomy only, rather than autonomy more generally. Though this could address the floodgates concern, it would hardly address the coherence concern, and would more likely compound it. As Purshouse has observed, while the result in Rees might seem like a just outcome, it is very difficult to find a principled basis for distinguishing reproductive autonomy from other kinds of autonomy.Footnote 131 The Shaw objection that autonomy is a right that underpins an award of damages, rather than being a head of damages in itself, is also persuasive. There is no tort of invasion of bodily integrity, for example, but this right or interest clearly underpins the torts of trespass to the person and negligence, and the awarding of damages in those torts.Footnote 132 From a theoretical perspective, therefore, the awarding of damages for interference with autonomy does not sit well with the architecture of the law of torts.
Ultimately, these various objections provide a good basis to look elsewhere for a solution. Notably, though Purshouse opposes the development of negligence to accommodate injury to autonomy, he acknowledges that other torts such as battery, or the rule in Wilkinson v Downton, might be suited to the task.Footnote 133 Even those who advocate using negligence to address cases of mistakes in reproductive treatment acknowledge that it is currently very limited in its ability to do so.Footnote 134 Priaulx criticises the failure of negligence to engage with psycho-social harms, arguing that negligence must be overhauled to allow it properly address such injuries.Footnote 135 If negligence is so limited, then perhaps attempting such a large-scale overhaul is not the most prudent course. It may be time to accept that negligence is simply not sufficient to address the range of interests that the modern law of torts must protect, and to develop the law of torts in a different way in response to this novel situation.
4. Vindicating reproductive autonomy through development of a new tort
This section considers, in outline, a proposed new tort, with a working title of ‘interference with reproductive endeavours’. While the new tort protects and vindicates the right to reproductive autonomy, it is not a tort of ‘interference with reproductive autonomy’, thereby preserving the formal distinction between the cause of action and the underpinning right.Footnote 136 Its narrow parameters would avoid raising floodgates concerns, and avoid undermining the internal coherence of the law of negligence. This tort would be intended to specifically address cases of mistake in reproductive treatment, cases which are relatively small in number, but which are significant enough to demand a coherent legal response. The tort's sanctioned conductFootnote 137 is an action in the clinical setting which causes a disruption to the claimant's reproductive plans. As set out above, the tort is designed to address mistakes in the course of assisted reproduction which lead to the birth of a child that is different in some significant way to that contemplated by the clinic and the intending parents when they entered into the agreement. The case of the parents in A and B is the prime example. This tort could potentially be used to address Yearworth-type fact pattern where the claimant has been deprived of the opportunity to have a child, though this fact pattern is not the driving force behind the new tort.Footnote 138
A full exploration of the political and practical concerns which would relate to the creation of a new tort is beyond the scope of this paper, but some brief comments may be made. The tort might be created either judicially or by statute. Given that the tort will always apply to a relatively small number of cases, it may be an unlikely candidate for priority in law reform. It may be, therefore, that judicial development is the more likely route. This route could also be the more appropriate. As the earlier sections have demonstrated, there is a rich body of case law that developed in analogous situations, which signpost the theoretical underpinning of this new tort. Those cases developed incrementally, and though they have been the subject of criticism, this paper argues that they ultimately produce a coherent result. Practically speaking, if this case were to be litigated a claimant would be well advised to mount alternative cases, pleaded both in negligence and under the proposed new tort.Footnote 139
Another practical element of relevance is the question of whether the creation of a new tort would lead to increased costs in assisted reproduction. While one can never fully predict the answer to a question like this, it seems unlikely that it would have this effect. First, the number of cases is small, and clinics already do their best to avoid such mistakes. Secondly, it would be advantageous to fertility clinics to have some degree of certainty about how such mistakes will be compensated. Currently, it is very difficult for a clinic and its legal advisers to accurately estimate the degree of legal risk arising from such a mistake, because it is impossible to give accurate legal advice on how a court would address such a claim. The certainty that a coherent, predictable regime for compensation would present would likely outweigh any concerns clinics would have about the floodgates opening.
Before turning to the specific features of the proposed new tort, one might well ask why the law of torts should be developed to vindicate the right to reproductive autonomy in the context of assisted reproduction. The primary justification is the fact that at present the law of torts provides no effective way to address mistakes in assisted reproduction. While the parents in A and B settled their claim on favourable terms, it is possible that had the case run, they would not have been successful. Furthermore, there is a growing acceptance of the importance of reproductive autonomy as a fundamental right, and one that is centrally engaged in the context of assisted human reproduction. The fact that reproductive autonomy deserves legal protection is clear from Rees itself, and from the willingness of courts to provide some kind of award to parents in cases of mistake in reproductive treatment.Footnote 140
There is ample scholarship on the right to reproductive autonomy in the context of assisted human reproduction.Footnote 141 Reproductive autonomy is usually examined in the public law context, usually framed as a right to resist state interference in assisted human reproduction,Footnote 142 but sometimes as a positive right to state funds in respect of reproductive treatment. This scholarship is equally relevant in the private law context. For most commentators the importance of reproductive autonomy flows from the fact that it concerns decision-making in a particularly intimate sphere. Jackson comments, ‘when we disregard an individual's reproductive preferences we undermine their ability to control one of the most intimate spheres of their life’.Footnote 143 A similar account of reproductive autonomy underpins the jurisprudence of the European Court of Human Rights concerning the right to become or not to become a parent, which is protected by Article 8 of the Convention, the right to respect for private and family life.Footnote 144 The European Court has acknowledged that Article 8 protects the right to engage in medically assisted procreation, including the use of donor gametes and technologies intended to avoid the passing on of genetic conditions.Footnote 145 It also protects the right to right to make use of embryos created through IVF and donate those embryos for the purposes of scientific research.Footnote 146 Central to Article 8 protection is the exercise of choice in respect of an intimate sphere of decision-making.Footnote 147
A distinction between reproductive autonomy in the public and private spheres is that the private law cause of action would operate against non-state actors, as well as state actors. This may prompt the objection that the right to reproductive autonomy is generally conceived of as a vertically applicable right which operates as against the state, rather than as against a private individual, and therefore that the public law scholarship cannot be used to justify a tortious claim. This objection is not fatal to the argument presented. The rights-based account of the law of torts is entirely premised on an understanding of rights in private law as being horizontally applicable. This approach, therefore, fits squarely within that rubric. Furthermore, the law of torts often refers to interests rather than rights.Footnote 148 In this case, that distinction is immaterial. Whether this is framed as a right to reproductive autonomy or an interest in reproductive autonomy, the outcome is the same: reproductive autonomy in assisted reproduction should be protected by the law of torts. The following are the key features of the proposed new tort.
(a) Actionability per se
The tort would be actionable per se. This is appropriate because torts which are actionable per se are fundamentally vindicatory. Their purpose is to provide a high level of protection for a fundamental right or interest.Footnote 149 With torts actionable per se, damage is not the gist of the action. Instead, the gist of the action is the importance of the underlying right: the right to reputation in the case of defamation, or the right to bodily integrity in the case of trespass to the person. There is no need to show loss to gain an entitlement in damages: a bare interference with the right is sufficient. This paper has argued that mistakes in reproductive treatment should merit an award of damages, but not because they lead to a form of loss which should be compensated in law, but rather because these mistakes entail an interference with the right to reproductive autonomy. As such, the vindicatory mechanism of the torts actionable per se is a better approach than the unorthodox use of negligence for a vindicatory purpose. It is true, of course, that many torts actionable per se permit recovery of both vindicatory damages and damages in respect of consequential loss. Remedies under the proposed tort would generally be confined to vindicatory damages alone, although consequential damages could be awarded in respect of losses other than the child him or herself.Footnote 150 Reproductive autonomy is clearly comparable in importance to other interests protected by torts actionable per se, such as the right to reputation,Footnote 151 or the right to inviolability of the dwelling.Footnote 152
(b) Liability
The tort would adopt a strict liability model. Liability for torts actionable per se is usually, though not always, strict.Footnote 153 The reason for this is that strict liability is consistent with the general purpose of actionability per se, which is to provide a high degree of protection for a given right or interest. The creation of a strict duty has been characterised as providing a reason for citizens to take extreme care.Footnote 154 The taking of extreme care is appropriate in the field of assisted reproductive treatment, in view of the dire consequences of a mistake being made. Strict liability has historically been criticised from both justiceFootnote 155 and from rule of law perspectives. In defending strict liability against a rule of law critique, Gardner explains strict liability in a way that illustrates its particular suitability to the context of mistakes in assisted reproductive treatment.Footnote 156 Drawing on Fuller,Footnote 157 he argues that strict liability is defensible by reference to the fact that strict liability generally operates where a certain prohibited action takes place in the course of a specified activity. If one wants to avoid that liability, one can simply avoid engaging in the specific course of activity in the first place. Strict liability is, Gardner argues, a predictable cost of doing certain avoidable kinds of business. This analysis sits comfortably with the specific, niche, activity that is the provision of assisted reproductive treatment. While Gardner's analysis is directed at rule of law concerns, it also seems useful in addressing any justice concerns that might arise. The provision of assisted reproductive treatment is a delicate business in which mistakes have very serious consequences. Providers elect to enter into that specific business which entails those inherent risks, and it is not unfair to impose reasons to take extreme care in the provision of those services.
(c) Quantum
Finally, it is necessary to turn to the tricky question of quantum. As a starting point, awards in Rees/McFarlane should be used as a benchmark for quantum. It bears repeating that while this paper defends the principle in those cases and the vindicatory award, it does not defend either the quantum or the fact that no variation is permissible. An award made in respect of this new tort would have to be for a sum less than that awarded in a Rees/McFarlane type case, as long as the mistake has led to the birth of a child. The kinds of mistake contemplated here (eg mixed up gametes and embryos) surely constitute a lesser interference with the right to reproductive autonomy than denying a person his or her decision not to have a child at all. However, were this tort to be used to address cases like Yearworth, where a person is deprived of the opportunity to have a child, then the quantum of damages could justifiably exceed that in Rees/McFarlane.
The quantum of damages should vary by reference to the degree of interference with the right. Distinguish, for example, the cases of ACB and A and B. In the former, the interference with reproductive autonomy was far more severe because it deprived the claimant of the ability to have a child with her husband. In the latter, the interference merely affected the choice between different anonymous donors.Footnote 158 The court's assessment of what is or is not serious should be assessed both objectively and subjectively, and should incorporate public policy concerns. The racial aspect of the parents’ complaint in A and B could, for instance, be deemed not to be a serious interference as a matter of public policy.
So what, then, are the specific figures? How does one attach a figure to the degree of interference with the right to reproductive autonomy, a figure which will be deemed to be sufficient substitutive damages? This is undoubtedly difficult, but the courts routinely grapple with attaching price tags to intangible interests. An analogy may be drawn with awards of general damages in medical negligence where the courts routinely attach a monetary sum to the experience of a certain kind of pain or injury, or if attendant on a personal injury, a certain kind of emotional suffering.Footnote 159 The key requirement is that such damages must not aim to compensate for the difference between the child that the claimant wanted and the child that they got, nor should they be calculated by reference to the cost of raising the child, as they inexplicably were in ACB. Damages must also be sufficient when judged by reference to general levels of damage in the legal system,Footnote 160 and thus might vary quite significantly across jurisdictions.
(d) Theory applied to sample fact pattern
Applying this proposed framework to the case of the parents in A and B, the practicalities of the proposed tort can be understood. The parents would have been able to show that they had suffered the proscribed conduct: an action in the clinical setting that caused a disruption to their reproductive plans. The children that resulted from the fertility treatment were different in a significant regard to those they and the clinic had in contemplation when embarking upon the treatment, ie they were the genetic children of a different donor. The mistake was not minor, such as a scheduling mix-up. The claimants would be able to recover in damages once they could demonstrate that the action had occurred, because it is actionable per se, and strict liability. As to quantum, the Court would have to try and decide what kind of award would properly vindicate the claimants’ right to reproductive autonomy by reference to the general awards of damages in that jurisdiction. Importantly, the Court's discretion as to quantum would allow it arrive at a sum that reflected the claimants’ right to choose the sperm donor, but not which attributed any additional entitlement to be protected from having children of a race that was not desired. This would enable the court to justly compensate the parents to the extent that they had suffered a genuine rights breach, but to simultaneously adopt a strong public policy stance against the recognition of race or ethnicity as a claimed damage.
Conclusion
As assisted human reproduction continues to develop apace, new technologies create scope for new kinds of mistake. At this point, a coherent approach to those mistakes must be found within the law of torts. This paper has argued that awards of damages are justified in such cases, but such awards are only appropriate where they vindicate the right to reproductive autonomy rather than compensate the loss occasioned through the birth of an unsatisfactory child. While such awards could be shoehorned into the tort of negligence, this would produce practical and conceptual difficulties. This paper has argued that the better approach may be to move towards a new standalone tort which protects the right to reproductive autonomy in the context of reproductive treatment.
The modern evolution of reproductive technologies has opened up an entirely new sphere of human operation, a sphere which keenly impacts upon the right to reproductive autonomy. The law of torts must develop to address this new context. Because the law of torts is bound up with society's changing mores and activities, it is perfectly well able to accommodate this. At any one time, the law of torts provides a snapshot of the rights and interests that a society values.Footnote 161 As a result, some torts become extinct and others come into being. The law of torts must respond to changing understandings of the rights which should be protected in society, and to the new contexts in which those rights may be breached.
