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Australian couple lose 'wrongful birth' IVF negligence court battle

MacKenna Roberts

Progress Educational Trust

03 August 2008

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[BioNews, London] An Australian couple lost a high-profile medical negligence case against their specialist fertility consultant at the Canberra Fertility Clinic last week. The couple had alleged that Dr Sydney Armellin negligently transferred two embryos rather than one as specifically requested when they received IVF treatment in 2003, thereby causing the birth of an additional baby, and then sought damages in the amount of $400,000 to help compensate for the cost of raising an additional twin daughter. This sum included fees for a private Steiner school, time off work and medical expenses. They testified that their relationship had suffered dramatically from the strain of raising twins. Their claim, launched in September 2007, attracted angry public criticism.

The president of the Australian Medical Association (AMA) for the Australian Canberra Territory (ACT), Dr Paul Jones, has welcomed the Canberra Supreme Court decision and called for legal clarification to prevent these so-called 'wrongful birth' claims - which classify the birth of a healthy child as 'damage' - from reaching courtrooms, similar to prohibitions that already exist in other Australian territories.

Former AMA president and obstetrician Dr Andrew Foote told The Daily Telegraph newspaper that 'it sends a very mixed message [to their children], that we love one but don't want the other. They should've been grateful for healthy babies'. ACT Health Minister Katy Gallagher cautioned against the case leading to ''knee-jerk' legislative change' but stated that the government is open to consideration. ACT Attorney-General Simon Corbell also warned that reacting to the case with legal amendment might cause a dangerous precedent. Chief Minister Jon Stanhope felt Foote confused the situation with emotional 'nonsense' about who loves children more and clouding facts that highlight important legal principles such as consent, a doctor's duty of care and patient trust.

Justice Annabelle Bennett cleared Dr Armellin of liability and rejected the couple's argument that they knowingly consented to the 0.1 per cent risk of identical twins from single-embryo transfer but not to the reported 20 per cent increased risk of twins resulting from two-embryo implantation. In a written statement during proceedings, the couple wrote that they 'cherish' their girls but this is about negligence and their right to consent to the procedure performed. Instead Justice Bennett found that the birth mother - whose identity has been temporarily suppressed by Court order - was 'negligent' for not making her choice of the total number of embryos to be implanted clear and reprimanded the clinic staff who failed to seek appropriate confirmation of consent.

Other critics of the same-sex couple focused on their homosexuality and questioned whether they should be restricted from assisted reproductive services. The couple retaliated that it is a 'double-standard' to expect minorities, including homosexuals, to be 'grateful' for reproductive privilege rather than to provide 'equal' rights. The average cost of an IVF treatment is about $5000 in Australia, however most couples - including homosexual couples - are eligible for a rebate of up to $1700 for each procedure.

The couple's solicitor Thena Kyprianou said her clients did not attend the hearing because it was 'too expensive' but are 'shocked' and will decide whether to appeal after considering the judgment.

© Copyright Progress Educational Trust

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.

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Date Added: 03 August 2008   Date Updated: 03 August 2008
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