Inaccurate Conception: ACB v Thomson Medical
To m F ox t o n
This note considers the decision of the Singapore Court of Appeal in ACB v Thomson 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 v Barnard,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 v Thomson Medical Pte Limited
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.
Choo 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 v Tayside Health Board
which rejected a claim for upkeep damages, and the High Court of Australia in
Cattanach v Melchior
(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.
1  SGCA 20.
2  2 SLR 218.
3  2 AC 59.
4 (2003) 215 CLR 1.
2018 The Author. The Modern Law Review
2018 The Modern Law Review Limited.
(2018) 81(2) MLR 337–360
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