A father has lost his High Court action against a London IVF clinic over the conception of his daughter by his ex-partner after their split.
The man, who can only be identified as ARB, had sued IVF Hammersmith Ltd.
He said that his ex, R, had tricked doctors into impregnating her with a frozen egg fertilised by his sperm in October 2010, and claimed damages for the cost of the upkeep of the child, born the following summer.
In London on Friday, Mr Justice Jay said ARB had succeeded on all issues “save the issue of legal policy”.
“It follows that there must be judgment for the clinic on the claim,” he said.
The judge added: “Although he has lost this case, my judgment must be seen as a complete personal and moral vindication for ARB. The same, of course, cannot be said for R.” He granted ARB permission to appeal.
ARB broke up with R, with whom he already had a son by IVF, in May 2010.
A number of embryos had been frozen with the parties’ consent and they signed agreements on an annual basis for these to remain in storage.
In October 2010, R handed the clinic a consent to thaw form, signed by her and purportedly signed by ARB and, on the basis of this document, an embryo was thawed and successfully implanted.
The judge said that ARB’s case, denied by R, was that the form was not signed by him and must have been forged by R, as their relationship had irretrievably broken down and she had moved out of the house they were sharing.
ARB said that there were no circumstances in which he would or could have signed the form and it followed that the daughter, E, was an “unwanted child” and that the clinic must now bear the financial consequences.
The judge concluded that ARB did not sign the consent to thaw form in October or at all – and his signature was forged by R.
He added: “I have held that the clinic owed a strict contractual obligation to ARB to obtain his written consent to the procedure, and that the clinic is in breach of that obligation because it did not obtain it.
“I have also held that the clinic was not negligent. The claim fails owing to public policy.”
Jude Fleming, of IVF Hammersmith, which denied liability, said: “As a clinic, we place patient care at the heart of everything we do. We regularly review our processes and we have since reinforced our procedures to go above and beyond the industry standard and ensure such a case could not occur again.”
In a statement, ARB said: “We welcome this judgment, which has found in our favour in respect of all issues relating to our primary case. This claim has never been about money; it is about justice.”
He added: “We went into this knowing the financial risk to our family in terms of immense legal fees.
“However, this fear was delicately balanced against the burning need to right a fundamental wrong, and to share our awful experience with fellow citizens.
“It has been an immensely painful journey, now amplified by the legal-cost burden, yet it is one we do not regret.”
He said he would appeal over “the isolated point of principle” up to the Supreme Court if necessary.