A long decision from Jay J in the English High Court today in ARB v IVF Hammersmith [2017] EWHC 2438 (QB). If IVF embryos are to be used, there must by law be consent from both parties responsible. Background facts: ARB & girlfriend R provided the necessary - er - ingredients to IVFH; later R walked out on ARB, forged ARB's consent to implantation & had the child implanted and born, with ARB as thefather.

ARB sues IVFH for, among other things, breach of contract. Jay J holds there is a strict contractual duty owed to each parent to get that parent's consent, so even if IVFH was not at fault it was still in breach. Next issue: can ARB get damages for cost of bringing up the brat? In tort he can't: McFarlane [2000] 2 AC 59 and Rees [2004] 1 AC 309. What about contract? Jay J says, after some agonising, that the bar also applies in contract. What this seems to mean is that the policy argument against allowing upbringing costs seems to prevail, even if the distributive justice reasoning also to be found in the earlier cases doesn't (which presumably must be the case in contract).

I can see where his Lordship is coming from. But if this is right, two things occur to me. (1) What about an express promise by the clinic to pay any upbringing costs if things go wrong? Is this now void as a matter of public policy? (2) The holding is a bit difficult to reconcile with the general assumption that the extra costs of bringing up a disabled child are recoverable.

Andrew