Q&As

What liability could arise if the wrong sperm was negligently used by a fertility clinic resulting in the baby having a genetic disease or different attributes to those that were chosen? What is the limitation period for any liability? What kind of awards could be made if the clinic was liable?

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Produced in partnership with Jamie Gamble of No5 Barristers Chambers
Published on LexisPSL on 25/11/2020

The following PI & Clinical Negligence Q&A produced in partnership with Jamie Gamble of No5 Barristers Chambers provides comprehensive and up to date legal information covering:

  • What liability could arise if the wrong sperm was negligently used by a fertility clinic resulting in the baby having a genetic disease or different attributes to those that were chosen? What is the limitation period for any liability? What kind of awards could be made if the clinic was liable?

What liability could arise if the wrong sperm was negligently used by a fertility clinic resulting in the baby having a genetic disease or different attributes to those that were chosen? What is the limitation period for any liability? What kind of awards could be made if the clinic was liable?

The potential causes of action in a case of this nature are highly complex. They include possible claims:

  1. for personal injury within the tort of negligence

  2. for damage to property within the tort of negligence

  3. in relation to the law of bailment

  4. for breach of contract, including pursuant to the term implied into any contract for services by section 13 of the Supply of Goods and Services Act 1982

  5. for breach of statutory duty under the Congenital Disabilities (Civil Liability) Act 1976 (CD(CL)A 1976) or the Human Fertilisation and Embryology Act 1990 (HFEA 1990)

  6. for breach of the Human Rights Act 1998 and in particular the right to family life

The usual limitation periods would apply to each of those potential causes of action.

The leading case in this area is Yearworth v North Bristol NHS Trust in which frozen sperm samples from men undergoing cancer treatment were destroyed. The Court of Appeal held

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