Healthy Child: Affection is greater than a liability

This case deals with the ‘’Genetic Affinity’’ factor in the IVF cases and the actionable damages claimed against the loss of it.

In this case the Appellant seeking an IVF treatment, conceived and gave birth to a girl child. Eventually the Appellant realised that the skin colour of the girl child was noticeably different from that of her parents.

It was subsequently discovered that the Appellant’s ovum had been fertilised with sperm from an unknown third party, instead of sperm from her husband.

The Appellant filed a suit against the IVF Clinic for breach of contract and not performing duty of care towards the patient. The Appellant prayed for the damages for compensation against full cost of upbringing the child i.e. the Upkeep Cost.

The Upkeep cost included the travelling expenses, educational expenses, medical expenses and the cost of feeding and caring for the girl child.

The opposite party conceded the liability, however refused to pay the compensation on the ground that there was nothing morally offensive in treating a birth of a healthy child. The child is a blessing and not a matter of compensation.

The Hon’ble court reiterated this by allowing partial compensation for the loss of ‘’Genetic Affinity’’ owing to the clinic’s failure to take the Appellant’s consent, however rejected the full compensation claim by the Appellant for the upbringing of the healthy child.

The case was described by the Hon’ble Court of Appeal as "possibly one of the most difficult" to come before it involved tragic facts and complex legal issues.