Damages for Wrongful Fertilisation: Reliance on Policy Considerations

Abstract

In what was described as ‘one of the most difficult cases’ that had come before it, the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd (‘ACB’) recognised, for the first time, the loss of genetic affinity as an independent head of loss that would allow a plaintiff to recover damages in a claim for wrongful fertilisation. In ACB, the Court of Appeal dismissed the claim for upkeep costs of raising the child from birth to maturity, and instead identified the loss of genetic affinity as the real harm for which damages should be awarded to compensate for the mistaken use of sperm from an unknown third party. An interesting aspect of ACB was how the Court of Appeal grappled with policy considerations as the basis for its decision. The influence of policy considerations in ACB raises the question of whether the decision runs contrary to the long-standing view that there is little room for public policy reasoning in private law adjudication. In this article, the author argues that the Court of Appeal’s decision in ACB was correctly made as it rightly embraced policy considerations in rejecting the upkeep claim and focused on the value of biological relationships in recognising an interest in genetic affinity.