The Weekly Law Reports
[2018] 2 WLR 1223
Queen’s Bench Division
B v IVF Hammersmith Ltd (R, Part 20 defendant)
[2017] EWHC 2438 (QB)
2017 July 18–
21,
25,
26;
Oct 6
Oct 6
Jay J
Contract— Construction— Express term— Male claimant and woman together obtaining infertility treatment at defendant’s clinic— Embryos frozen and stored for future implantation— Agreement to thaw embryo requiring written consent of both parties— Following estrangement woman forging claimant’s written consent to thaw frozen embryo— Embryo implanted and woman giving birth to healthy child— Whether defendant in breach of obligation to obtain written consent from claimant— Nature of defendant’s obligation— Whether “written consent” different from “written informed consent”
Damages— Contract— Breach— Male claimant and woman together obtaining infertility treatment at defendant’s clinic— Embryos frozen and stored for future implantation— Following estrangement woman forging claimant’s written consent to thaw frozen embryo— Embryo implanted and woman giving birth to healthy child— Claim against defendant for breach of strict contractual obligations to obtain his consent to thawing and implantation of embryo— Whether damages recoverable for costs of child’s upbringing— Whether legal policy precluding tortious claim for such damages applying to contractual claim founded on identical substantive duties
Medical practitioner— Medical treatment— Human fertilisation— Male claimant and female partner providing gametes for creation of embryos by in vitro fertilisation— Embryos frozen and stored with written consent of both parties— Parties separating— Female partner forging claimant’s written consent to thaw frozen embryo— Whether thawing of embryo “use”— Whether claimant’s initial consent to use his sperm and embryos continuing—
Human Fertilisation and Embryology Act 1990 (c 37), Sch 3, para 6 (as amended by Human Fertilisation and Embryology Act 2008 (c 22), s 13, Sch 3, para 9)[1]