Inaccurate Conception: ACB v Thomson Medical

Published date01 March 2018
AuthorTom Foxton
Date01 March 2018
Inaccurate Conception: ACB vThomson Medical
To m F o x t o n
This note considers the decision of the Singapore Court of Appeal in ACB vThomson Medical
in which the plaintiff sought damages for the upkeep costs of a child conceived using sperm
from someone other than her husband as a result of negligence by a fertility clinic. The Court
held that upkeep costs could not be recovered as a matter of public policy,but recognised a new
head of loss, namely damages for loss of genetic affinity. In a controversial ruling, the Court
quantified these damages at thirty per cent of the upkeep costs of the child. While holding that
punitive damages could be recovered outside the categories recognised in Rookes vBarnard,the
Court rejected such an award on the facts of the case.
Were it not for the obvious distress caused to the family concerned, one might
be tempted to dismiss the facts of ACB vThomson Medical Pte Limited1(ACB )
as having been devised by a particularly fiendish setter of moot problems. The
plaintiff (ACB) and her husband approached the defendant fertility clinic for
help in conceiving a child through in-vitro fertilisation. However a mix-up
in the clinic led to the use of the sperm of an unknown male, instead of
that of ACB’s husband. The baby (Baby P) was healthy, but the unknown
sperm donor was of a different ethnicity to ACB’s husband, with the result
that the baby was of mixed Chinese-Indian, instead of Chinese-Caucasian,
ACB sued the clinic in contract and the tort of negligence, seeking various
heads of loss including the expenses of bringing up the child until it became
financially independent (upkeep damages). The claim for upkeep damages
failed at first instance.2Choo Han Teck J was referred to decisions on claims
for upkeep damages following failed sterilisations from other jurisdictions, in
particular the House of Lords in McFarlane vTayside Health Board3(McFarlane)
which rejected a claim for upkeep damages, and the High Court of Australia in
Cattanach vMelchior4(Cattanach) in which a majority had allowed such a claim.
However, the judge noted that those were cases in which parents claimed that
negligence had caused them to conceive a child when they did not want any
more children, whereas the parents in ACB wanted to conceive a child, albeit
BCL Candidate, Pembroke College, University of Oxford. I am grateful to Professor Donal Nolan
for his comments on an earlier draft.
4 (2003) 215 CLR 1.
C2018The Author. The Modern Law Review C2018 The Modern Law ReviewLimited. (2018)81(2) MLR 337–360
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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