Can couples can sue if they get more than they planned for from IVF treatment? Adelaide lawyer Mal Byrne writes about the controversial issue.

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As reported in the media, a Queensland couple are suing an IVF Clinic for compensation for negligence and breach of contract after the mother gave birth to healthy triplets when the couple had only wanted twins.  As part of the damages, the couple is seeking the cost of raising the additional child. The action is controversial.  People are asking how the couple can claim compensation for getting three healthy babies instead of two.  Aren’t children a blessing? Isn’t this telling the extra child that it was unwanted?  There are moral debates and legal arguments and I will attempt to address both in this blog.

A couple in these circumstances has two potential legal causes of action.  The first is negligence.  The couple must prove that the additional conception occurred as a result of the negligence of the fertility clinic.  The Queensland couple allege that the doctor implanted three fertilized embryos instead of two.  The couple have to prove that implanting the additional fertilized embryo was negligent and not a standard risk of the procedure.  They will probably have to provide expert evidence from an in vitro fertilization specialist critical of the standard of care provided by the doctor concerned.

The second potential cause of action is breach of contract.  The couple are arguing that they signed a contract with the fertility clinic and that it was a specific term of the contract that the end result would be twins and not triplets where fertilization was successful.  As with any contract, there are many clauses and a lot of fine print and whether a breach has occurred will be a matter of interpretation of the terms of the contract and the facts of the case.

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A South Australian couple confronted with the same situation wishing to sue the fertility clinic will also have to prove negligence or breach of contract.  However, can a South Australian couple claim the same types of damages as the Queensland couple noting that the Queensland couple are claiming the cost of raising the additional child from birth to adulthood? In my blog on wrongful birth, I pointed out that Section 67 of the Civil Liability Act in South Australia limits the compensation available to a South Australian couple where a wrongful birth occurs to the following:

1. The pain and suffering of the birth mother during the pregnancy;

2. The loss of income of the birth mother arising out of the pregnancy alone;

3. The partner of the birth mother can claim for loss of companionship of the birth mother during the pregnancy.

These heads of damage are all modest in quantum terms.  The cost of raising a child from birth to adulthood is far greater.

However, in my view, it is arguable that Section 67 of Civil Liability Act does not apply to circumstances where the wrongful birth is the birth of an extra child in a multiple pregnancy.  Section 67 of the Civil Liability Act was introduced in South Australia on 1 April 2004 as a result of series of amendments to the Civil Liability Act brought on by complaints at that time about the cost of obtaining public liability insurance and medical professional indemnity insurance.

Reproductive technology has advanced enormously in the last decade.  When the 2004 amendments were introduced, the only type of case that the Courts saw were cases where couples who decided that they did not want children were confronted with a pregnancy due to a failed contraceptive device or sterilisation procedure such as a failed vasectomy, failed tubal ligation or failure of installation of an intrauterine device.  This in my view is evident from the wording of Section 67 which refers to “a child” throughout rather than an extra child or additional child. I think that it is arguable that Section 67 of the Civil Liability Act does not apply at all to the situation of the Queensland couple and therefore the situation of a South Australian couple in the same circumstances.

Even if a Court was to find that Section 67 applied to couples dealing with fertility clinics and confronted with additional children, I think that it is still arguable that the couple might be able to claim for the cost of raising the child depending on the circumstances of the case.  In the case of an action in negligence, it is a question of whether the phrase “unintended conception of a child” in Section 67(3)(a) can be extended to include an extra child or additional child.

Arguably, it might be, but what if the couple seeking twins gets quadruplets.  What would apply there?  I do not think that is clear.  However, it is actions for breach of contract where I think a larger legal gap exists.  The ordinary costs of raising a child are not claimable in an action for breach of contract where the breach is an innocent misrepresentation resulting in the unintended conception of the child (once again a child not extra child or additional child).

This section however is unlikely to apply often in contracts between couples and fertility clinic as the alleged breach is unlikely to be innocent misrepresentation in many cases.  In most cases, the alleged breach will be breach of statutory implied warranty that the number of children arising from the process was not the number of children contracted for.  However, Section 67(3)(e) only precludes couples getting the ordinary cost of raising a child where there is a breach of statutory implied warranty where the child “is conceived as a result of the failure of a contraceptive device”.

The problem for fertility clinics here is that the extra child in these circumstances is not conceived as a result of the failure of a contraceptive device. The extra child is conceived as a result of a defect in the fertility process that has nothing to do with contraceptive devices.

Hence, to summarise, I think that it is possible for a South Australian couple contracting with a fertility clinic for twins but who then have triplets due to either the negligence or a breach of contract on behalf of the fertility clinic to sue for the ordinary cost of raising the child under the current statute.  In my view, the current statute which was designed in 2004 did not contemplate the situation with the Queensland couple.

It only contemplated the zero to one baby situation where couples not wanting to have children were suddenly confronted with a pregnancy due to a failed contraceptive or sterilization process.  It did not contemplate fertility clinics providing couples with an extra child in addition to the children sought by the couple.

Of course, there is a moral debate that accompanies the legal debate. Critics will argue that all children are a blessing.  While there might be some sympathy for couples who did not want to have families or did not want to add to their families suddenly confronted with a pregnancy due to a breach of care from a doctor or hospital, there will be less sympathy for couples desperate to have children who get one more child than what they bargained for.

However, child birth is no longer a fully natural process.  What critics against people claiming compensation in these circumstances should consider is that there is a substantial amount of money changing hands between couples and the clinic and that this process is a transaction.  Fertility clinics are profitable, with concerns that some have or are being taken over by equity companies.  Technology is advancing at a rapid rate.  It is becoming increasingly easier for couples to specify what they are looking for when contracting with the fertility clinics and for fertility clinics to meet those demands.  In vitro fertilisation is expensive.

Most couples have to remortgage their house or take out personal loans to cover the cost.  In those circumstances why is it not reasonable for couples paying that amount of money to fertility clinics to expect to get what they paid for and to seek compensation when that does not happen due to the negligence or breach of contract of the clinic?  Like surrogacy, in vitro fertilisation has commoditised child birth.

Children might be a blessing, but they are also a responsibility and a financial burden and if the entity to whom you are paying substantial amounts of money has the power to limit the number of conceptions, why should you not expect the clinic to adhere to the terms of its contract and provide a reasonable standard of care?

As technology becomes more sophisticated and has the power to provide couples with more specific requests in terms of the children and conceptions that people are paying money in expectation that those specific terms we met, you can expect more legal action of the kind that we are seeing in Queensland. The law at the moment does not specifically address this set of circumstances and there will have to be a debate about where the line is drawn on the compensation available.  I disagree with those who say that no compensation should be payable.  If you pay substantial amounts of money to a fertility clinic that has the power to give you two children and it gives you three through some form error a breach of duty of care, you should be entitled to some form of compensation.  The more difficult debate is whether the compensation should be limited to the short term impact including getting over the financial hump of the extra child or whether it should be extended to the full cost of the extra child from birth to adulthood.

 

TGB is South Australia’s largest plaintiff law firm. For advice, contact your nearest TGB office.