Singapore Court Awards Damages for Loss of “Genetic Affinity”PDF
In its March 22, 2017, decision in ACB v. Thomson Medical, the Court of Appeal of Singapore (the city-state’s supreme court) approved an award of damages for loss of “genetic affinity” against a fertility clinic that negligently fertilized a mother’s egg with sperm from an anonymous donor rather than her husband. The plaintiff and her husband had sought help from the four defendants, a group of related medical entities and practitioners, to conceive a child in vitro. The wife is an ethnically Chinese Singaporean and the husband is a Caucasian of German descent. After multiple attempts at fertilization, the wife gave birth to a baby girl (referred to in the opinion as “Baby P”). The family noticed that Baby P’s skin tone did not match that of either parent, nor that of their older child. They also learned that Baby P had a blood type that could not be reconciled with the parents’ types. Further medical investigation revealed that the wife’s egg had been fertilized not with the husband’s sperm, as the couple had intended, but with the sperm of an anonymous donor of Indian ethnicity.
The mother sued for breach of contract and negligence, and the lower court denied her claims. The Court of Appeal seemed to have no doubt that the defendants had breached their contract and been negligent: the couple had contracted to have the wife’s egg fertilized by the husband’s sperm, and the defendants’ mixing up of the sperm samples was a clear violation of their duty of care. The Court of Appeal nonetheless agreed with the lower court that the plaintiff mother was not entitled to recover damages under any of the several legal theories that she argued for. However, it did find that she should be compensated for the loss of genetic affinity with her daughter—“the fracture of biological parenthood”—and instructed the lower court to award her “30% of the financial costs of raising Baby P.”
Damage and Damages
The court’s legal reasoning is complicated but critical to understanding the significance of the case, so stay with me—I’m a law professor after all, so there might be a test. As I said, there was no doubt that the defendants committed two legal wrongs: breach of contract and negligence. But that doesn’t end the analysis. To win, a plaintiff still has to prove both damage and damages, which are actually different things. To prove damage (sing.), the plaintiff has to show an injury in a category that the law recognizes. As an American lawyer, I’d call this “the fact of damage”; writing in British legalese, the Singaporean court called it “an actionable head of damage.” Proving damages (pl.) involves producing evidence of the specific dollar value of that damage.
In Thomson, the Court of Appeal initially rejected several possible actionable (or compensable) heads of damage, all under the general heading of “upkeep claims.” In upkeep claims, a parent (or sometimes the child, through a representative) seeks to make the defendant pay the cost of raising the child. Such claims have often been predicated on allegations that, for example, the defendant failed to diagnose a prenatal problem that would have led the mother to abort the pregnancy (“wrongful life” or “wrongful birth”), or the defendant’s negligence in performing a sterilization procedure resulted in an unwanted pregnancy (“wrongful conception” or “wrongful fertilization”). The Singapore Court of Appeal canvassed cases from the “common law” world, those countries (like the United States) whose legal systems are derived from England’s. It found that upkeep claims have generally been rejected in cases in which the baby is born healthy. The one American case cited by the court, Andrews v. Keltz, a 2007 decision by a New York state trial court, had facts that were virtually identical to Thomson. Citing general public policy concerns, the New York court held that parents “cannot recover damages based upon their claim that they were deprived of the opportunity to have a child of their own genetic makeup.” Upkeep claims have sometimes been allowed to cover the extra costs of raising a child born with disabilities.
The Thomson court rejected the mother’s upkeep claim for two principal reasons, one specific and one general. Specifically, the court noted that the plaintiff mother wanted to have a child, and was thus prepared to take on the expense of raising a child. More generally, the court was unwilling—as other courts worldwide have been—“to regard, as actionable damage, the incidents of a relationship which is regarded as socially foundational and incapable of estimation as loss.” In other words, it would be a repugnant policy to ever treat the birth of a child as a bad thing.
But that was not the end of the Thomson legal story. The court allowed the mother to recover after all. It came up with (invented, as far as I can tell) loss of genetic affinity—“the fracture of biological parenthood”—as an actionable head of damage. In justifying this conclusion, the court noted that “[t]he ordinary human experience is that parents and children are bound by ties of blood and share physical traits.” This “fact of biological experience” in turn “carries deep socio-cultural significance.” The court highlighted the socio-cultural significance of parent-child genetic relatedness, and the damage caused by confounding it, by quoting at length from the mother’s affidavit. She told of “curious looks” from strangers when the family goes out in public and people observe “Baby P’s skin tone which is different from my eldest son’s, my husband’s and/or mine,” as well as the pain she feels when responding to questions about Baby P’s appearance from her other child or her family or in-laws. It all added up, in the court’s view, to “a tragic set of facts.”
The Court of Appeal was plainly aware that its opinion might be read as an endorsement of racist ideas and conduct, and sought to defuse such criticism preemptively:
We draw attention to these points not because we approve of these attitudes—and, indeed, we hasten to declare our categorical and unequivocal objection to any suggestion that racism has any place in our society (especially in the context of Singapore)—but because they represent the social reality that we must confront, even if we do not support it.
In other words, we don’t like the way people are treating this family, but it is the world they have to live in, and the legal system can’t ignore it.
Finally, having identified this form of actionable damage (sing.), the Court of Appeal turned to damages (pl.)—how should the mother’s “anguish, stigma, disconcertment, and embarrassment” be quantified in dollars and cents? It chose a “conventional sum” approach, which apparently means that it arbitrarily picked a number that it thought was fair: “30% of the financial costs of raising P.” It sent the case back to the lower court to convert this percentage into a dollars-and-cents estimate that the defendants would have to pay.
I’m having a hard time deciding what I think of this decision. On the one hand, as a general proposition, I don’t like to see people—especially high-paid experts who charge big fees—being allowed to ignore the consequences of their mistakes. But on the other hand, I’m morally troubled by the idea that a parent (and I am one, four times over) can be damaged by the birth and life of a child. The usual theory of negligence damage is that the plaintiff has been made worse off by the defendant’s conduct (has been physically injured by the defendant’s negligent driving, for example). The law then makes the defendant reimburse the plaintiff for out-of-pocket expenses like medical bills and also pay an amount to compensate for the tangible and intangible degradation of the plaintiff’s life (for example, lost future earnings, pain and suffering, and emotional distress). I’m not comfortable with the law treating parenthood as diminishing the quality of one’s life.
I’m especially uncomfortable when the basis of the alleged injury is upsetting someone’s racial expectations. Had the anonymous donor been northern European, the parents might never have had any reason to discover the defendants’ error. Even if they had learned of it, family, friends, and strangers might never have had the race-based reactions that produced the family’s “anguish, stigma, disconcertment, and embarrassment.” So the source of the “fact of damage” in this case was not merely that the defendants made a serious mistake, but that their mistake concerned race. But for this element, there probably never would have been a case, and almost certainly there would have been no recovery.
In the end, I think that by recognizing a compensable claim for genetic affinity, the Court of Appeal has come dangerously close to endorsing the notions of racial purity that it goes out of its way to condemn. It would have been better for the court to reject the wrongful-conception-type upkeep claims and go home. I hope that courts in the United States and elsewhere will decline to follow Thomson.