Friday 18 October 2019

Father loses appeal over IVF conception of daughter using forged signature

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Sian Harrison

A father whose ex-partner forged his signature to conceive a daughter has lost a Court of Appeal damages action against a London IVF clinic.

The man, who can only be identified as ARB, sued IVF Hammersmith after his ex, R, was impregnated with a frozen egg fertilised by his sperm in October 2010, months after they had separated.

He claimed compensation for the cost of the upkeep of the child, born the following summer.

The father successfully argued the clinic was in breach of contract because it failed to get his consent for the procedure.

But senior judges upheld a previous ruling that he is not entitled to a penny because of "public policy" that means he cannot be compensated for the cost of bringing up a "healthy child".

The relationship between ARB and R, who already had a son by IVF, had broken down irretrievably in May 2010 and she had moved out of the home they shared.

A number of embryos had previously been frozen with both 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.

Mr Justice Jay found in October last year, following a High Court hearing, that R, who "desperately wanted another child", had traced in biro over a pencil outline of ARB's signature on the form.

The judge said he was completely satisfied ARB had no intention of having another child with R after their split.

The child, E, was "by all accounts a lovely, healthy girl" who lived most of the time with R, with ARB discharging his parental duties in a separate household.

The father argued he was entitled to compensation from the clinic because it had breached its contract with him by failing to obtain his "written or informed consent".

The judge concluded the clinic was not negligent and ARB succeeded on all issues "save the issue of legal policy" - which meant he could not recover damages.

Mr Justice Jay said at the time of the ruling: "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 permission to appeal and ARB brought a challenge against the ruling in October.

His lawyers argued the legal policy referred to by the judge in his ruling was not relevant to his case as it involved a contract.

In a ruling delivered in London on Monday, three senior judges dismissed his appeal, saying the policy did apply in ARB's case.

Lady Justice Nicola Davies, sitting with Lady Justice King and Lord Justice David Richards, said: "Whatever the circumstances of E's birth, her father has accepted his share of responsibility for her upbringing, he wishes to treat her in the same way as his other children."

In a statement following last year's High Court ruling, ARB said his claim was never about money but "justice".

He added: "It is imperative that nobody should have to experience what we have lived through ever again."

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