A vindicatory approach to tortious liability for mistakes in assisted human reproduction

Mistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where the claimants are the parents of the resulting, healthy, child. Drawing on the analogous tort of wrongful pregnancy, the paper provides a vindicatory account of the case of Rees v Darlington Memorial Hospital, and argues that Rees signposts the correct approach for tortious claims arising from mistakes in assisted human reproduction. It is argued that while the law should not compensate ‘loss’ flowing from the birth of a child, parents should be entitled to an award of damages to vindicate their right to reproductive autonomy. The paper explores vindication of the right to reproductive autonomy through the tort of negligence, but argues that vindication may be more effectively achieved through the creation of a separate tort which is actionable per se, strict liability, and expressly focused on vindication rather than compensation.