It has been more than a year since a five-judge appeal court first heard arguments on whether a woman who conceived a baby with a stranger’s sperm in a fertility treatment mix-up is entitled to damages for bringing up the child.
But no answer is in sight as to the knotty question.
A second hearing yesterday continued to explore various legal issues raised in the case – described as “unique” and “difficult” by the judges – and ended without a conclusion.
The three-hour discussion touched not only on the woman’s claim for upkeep of the child, but also expanded to other possible categories of damages she had not pleaded, including punitive damages and damages for loss of autonomy.
The conundrum arose in a negligence suit the woman filed in 2012 against Thomson Fertility Centre, its parent company Thomson Medical, and two embryologists.
In 2010, the woman and her husband went to the centre for in-vitro fertilisation (IVF) treatment.
A stranger’s sperm – instead of her husband’s – was used to fertilise her extracted eggs.
The mistake resulted in her giving birth to a baby girl, who is now six years old, with her genetic makeup but not her husband’s.
The couple’s suspicions were first aroused by the newborn’s complexion and later her blood type.
In her suit, the woman sought damages for various categories of claims, including for the upkeep of the child, known as Baby P in court proceedings.
They included expenses for necessities until the child is financially self-reliant, education in Beijing where the family was based, and tertiary education in Germany, the husband’s home country.
Ahead of the assessment of damages, the defendants asked the High Court to rule on whether Singapore law allows damages to be awarded for the expense of raising a healthy child.
Last year, the High Court disallowed the claim, citing policy considerations which view the birth of a healthy child as a blessing. The woman appealed.
The appeal was first heard in August last year.
As the hearing continued yesterday, Chief Justice Sundaresh Menon questioned if the mental harm suffered by the woman could be compensated and, if so, how it should be quantified. He wondered aloud if upkeep costs could be seen as a proxy for damages for emotional distress, offset against the joys of having a child.
The woman’s lawyer, Senior Counsel N. Sreenivasan, argued against such a weighing exercise, saying that the boon and bane of raising the child are “incommensurable” and “two different sides of the same problem”. He added that his client still has emotional anguish in raising the child.
selinal@sph.com.sg
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