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Father loses IVF damages claim over daughter conceived after split from ex-partner

Sperm is injected into an egg in IVF. Credit: PA

A father has lost his High Court action against a London IVF clinic over the conception of his daughter by his ex-partner after their split.

The man, who can only be identified as ARB, said that his ex, R, had tricked doctors into impregnating her with a frozen egg fertilised by his sperm in October 2010.

He claimed damages for the cost of the upkeep of the child, born the following summer, from IVF Hammersmith Ltd.

Mr Justice Jay said ARB had succeeded on all issues "save the issue of legal policy".

"It follows that there must be judgment for the clinic on the claim," he said.

The High Court in London. Credit: PA

The judge added: "Although he has lost this case, my judgment must be seen as a complete personal and moral vindication for ARB.

"The same, of course, cannot be said for R."

He granted ARB permission to appeal.

ARB broke up with R, with whom he already had a son by IVF, in May 2010.

A number of embryos had been frozen and the couple signed agreements on an annual basis for these to remain in storage.

In October 2010, R handed the clinic a consent-to-thaw form, signed by her and purportedly signed by ARB and, on the basis of this document, an embryo was thawed and successfully implanted.

The judge said that ARB's case, denied by R, was that the form was not signed by him and must have been forged by R, as their relationship had irretrievably broken down and she had moved out of the house they were sharing.

ARB said that there were no circumstances in which he would or could have signed the form and it followed that the daughter, E, was an "unwanted child" and that the clinic must now bear the financial consequences.

The judge concluded that ARB did not sign the consent to thaw form in October or at all - and his signature was forged by R.

"I am also completely satisfied that ARB had no intention of having another child with R after May 2010.

"In October 2010, R well knew that, which explains why she resorted to desperate, dishonest measures."

The judge ruled that the mother 'resorted to dishonest measures'. Credit: PA

The judge said that E was "by all accounts a lovely, healthy girl" who lived most of the time with R, with ARB discharging his parental duties in a separate household.

Describing it as an "extraordinary case", he said that E was born in "extremely fraught, possibly unique, circumstances".

He added: "I have held that the clinic owed a strict contractual obligation to ARB to obtain his written consent to the procedure, and that the clinic is in breach of that obligation because it did not obtain it.

"I have also held that the clinic was not negligent.

"The claim fails owing to public policy. I have held that the principles underpinning two House of Lords' decisions in NHS claims given some 15 years ago apply equally to this contractual claim."

Jude Fleming, of IVF Hammersmith, which denied liability, said: "We are pleased the court has found in our favour, and dismissed the claim against the clinic.

"We are particularly pleased that the judge found that we acted with reasonable care.

"As a clinic, we place patient care at the heart of everything we do.