A father whose ex-partner forged his consent to IVF treatment at IVF Hammersmith lost his claim for damages in the High Court on Friday.
The claim was made after the mother, referred to in the judgment as R, became pregnant through IVF without the consent of the father, referred to as ARB. R had handed the clinic a ‘consent to thaw form’ with ARB’s forged signature and asked the clinic to implant an embryo after the couple broke up in 2010. ARB had no knowledge that the procedure was going ahead.
Mr Justice Jay ruled that IVF Hammersmith, a private IVF clinic, had failed in its duty to obtain consent from both parties before beginning the procedure. However, it held that the clinic would not have to pay the £1 million in damages that ARB was claiming in order to raise the ‘unwanted’ child. The £1 million claim for the ‘financial burden’ of the now 6-year-old was calculated as including such expenses as private education, a nanny and holidays.
It was concluded in the High Court on Thursday that ARB did not sign the consent form and that his ex-partner, R, had forged his signature. IVF Hammersmith argued that they had not ‘expected duplicity of this nature’ and as such could not be blamed for failing to spot the forgery. In finding the clinic not negligent, Mr Justice Jay stated:
‘I have held that the clinic was not negligent. The claim fails owing to public policy. I have held that the principles underpinning two House of Lords’ decisions in NHS claims given some 15 years ago apply equally to this contractual claim’.
The judge also added that:
‘Although [ARB] has lost this case, my judgment must be seen as a complete personal and moral vindication for him. The same, of course, cannot be said for [R]’.
The case put a spotlight on the IVF industry and ARB called for re-evaluation of the approach to their governance. He urged that they must change from an approach ‘with systematic failures and repeatedly castigated in the courts’ to ‘one fit enough to effectively protect the public’. The procedure of the clinic to witness signatures if both partners were present but accepting a signed form as proof when only one was present was criticised as ‘illogical.’
Clearly, the failure of ARB to receive damages was in no way a failure to acknowledge that he had been the victim of a ‘legal wrong’. Wider policy issues had to be taken into account and the potential domino effect that awarding damages against one private clinic could have on other clinics, and potentially the NHS.
Jude Fleming of IVF Hammersmith stated that they have ‘since reinforced our procedures to go above and beyond the industry standard and ensure such a case could not occur again’. It is hoped that such will be the case for other private clinics and that the decision not to award damages will not have the effect of seeing other clinics taking a more lax approach.
To read the judgment in full, please click here.