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Singapore Supreme Court Upholds Compensation For “Subversion Of Genetic Affinity”[Read Judgment]

The Supreme Court of Singapore recently ruled that parents can claim compensation for subversion of their interest in “genetic affinity” with their children.

“In our judgment, the Appellant’s interest in maintaining the integrity of her reproductive plans in this very specific sense – where she has made a conscious decision to have a child with her Husband to maintain an intergenerational genetic link and to preserve “affinity” – is one which the law should recognize and protect. And given that interests are the “positive aspects of damage” (see J A Weir, “Liability for Syntax” [1963] CLJ 216 at 218), we hold that the damage to the Appellant’s interest in “affinity” is a cognizable injury that should sound in damages,” Judge of Appeal Andrew Phang wrote on the Court’s behalf.

The Court was hearing a case involving an unfortunate sperm mix-up in an in-vitro fertilization (IVF) procedure at Thomson Medical Centre in Singapore. The mix-up was revealed by a genetic test, which was conducted after the parents noticed that the daughter had markedly different features, including hair and skin tone, as compared with them and their first child. The test had found that the child was only related to the mother, and that Thomas Medical had accidently used an anonymous donor’s sperm instead of the husband’s.

The parents had then sued Thomas Medical in both tort and contract, and had sought damages for, among other things, the expenses that they would incur in raising the baby. During the proceedings, Thomas Medical had conceded liability, but had argued that the Appellants should not be allowed to recover upkeep costs. The High Court had ruled in favor of Thomas Medical, denying claim for upkeep costs. This decision was now under challenge before the Court of Appeal.

The Court of Appeal unanimously upheld the decision of the High Court on the issue of upkeep costs, observing that such a claim would be “inconsistent with, and deleterious to, the health of the institution of parenthood and would be against the public interest”.

The Court, however, found that the parents had suffered a loss of “genetic affinity”, an expression which the Court used to refer to ties which arise partly as a result of genetic relatedness, and partly as a result of the social significance which such relatedness carries. This loss, it held, should be considered a distinct and recognizable head of damage in its own right.

While it remitted the case to the High Court for assessment of the quantum of damages to be awarded, the Court observed that an amicable settlement on the issue of quantification would help the parties in achieving “closure”.

Read the Judgment here.

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