24th January 2022
Today’s show began with the very interesting case of an American couple suing a fertility clinic in respect of the implantation of a stranger’s embryo which resulted in 2 couples carrying each other’s embryo for the term. Seamus Gunn explained the proceedings now being taken, he said he believed that negligence could be proven and was established by the follow up investigation, but he had some reservations about the level of damages such an action would attract. He said that the couple were seeking damages under a number of headings which included emotional damages and property damages. He said that one could take the view that once the position was remedied and the parents had now the correct baby, that they could in time look back on it positively in that the bonding that was established for the first number of months in respect of another person’s baby, may last the test of time. He compared the situation to a fertility clinic providing both sperm and egg to strangers to be carried for a full term by the mother after implantation and that the child was no less cherished. He thought that there would be some form of monetary compensation as costs could have been incurred as a result of the mistake, initially by way of custody applications and likely Court Orders which could be payable by the clinic. He said that he understood that it had arisen as a result of one doctor dealing with 2 clinics to which he was associated. He made the point in relation to damages that if he was defending the case, he would be highlighting what is reported, that Daphna Cardinale was uneasy from the outset, immediately after the birth as she did not recognise the baby and thought that her complexion was darker. Our contributor said that he thought that this was the time to call for a DNA test to establish the position and the mistake could have then been addressed. Greg Hughes thought that it was a difficult situation for the mum and said that he was not sure how he would react. SG explained the claim for emotional damages, in similar terms to post-traumatic stress disorder in this jurisdiction and the claims that arise under this heading. He was of the view that while the couple were entitled to take the claim, that it may be better settled out of court as it was basically an assessment case, while he had some reservations as to the extent of the damages the Court would award.
Listen to the Q&A that followed online.