Negligence by IVF providers: injury on being born?

Abstract

In vitro fertilisation is now a common technique for assisting couples who have difficulty in conceiving a child. Suppose, however, that through the negligence of the IVF provider a child is born who possesses a genetic disability inherited from a sperm donor, or who possesses other genetic characteristics unwanted by the parents. This article explores the legal background to, and any potential legal liability flowing from, eventualities of this kind. It examines first the New Zealand accident compensation scheme, and concludes that there is no cover for the child but some limited cover for the mother. Actions for damages by the child and/or the parents become possible to the extent that the scheme does not apply. Such actions raise particularly difficult issues of both principle and policy, but, absent legislative intervention, a reasonably satisfactory resolution of at least some of these issues is within the reach of the courts.