The right to plan a family is fundamental to our existence as a human being and central to our hopes and dreams in life.
Interference with those rights through negligent treatment and care can have devastating consequences.
Many people rely on assisted reproductive therapy (ART) (including IVF and IUI treatment) to fulfil their dreams of starting their family. According to the Hudson Institute, Australia is among the highest per capita users of IVF with approximately 5% of children (1 per classroom) conceived using reproductive medicine.*
ART technology has given millions of people around the world renewed hope in their quest to start a family. For those who chose ART it soon becomes apparent that it is costly not only financially, but also in terms of the physical and mental toll.
Unfortunately, we have recently seen a very concerning increase in negligence in the ART setting, ranging from inadvertent destruction of embryos to inaccurate or unreliable testing for prescribed genetic abnormalities. Other clients come to us with claims that are not typically medical negligence but give rise to other causes of action such as:
- Reliance on misleading representations made by a clinic whether they are about the quality of donor sperm or the nature of testing
- Services either not being fit for purpose or not being provided with due care and skill
- Breach of guarantees made by the clinic regarding number of embryos or success rates
The level of genetic testing in the ART space is extremely high and the accuracy of that testing is heavily relied upon by clients. In cases involving issues with genetic testing, negligence in this area can lead to the birth of a child often with a severe disability or it can lead to the destruction of embryos which have been wrongly diagnosed as being genetically deficient.
When ART treatment goes wrong, it may result in a devastating loss of what may be for some, their last opportunity to have a family. The personal toll can be permanent and debilitating, and in many circumstances leave our clients with feelings of failure, disappointment and serious psychological injury.
How are ART claims different to other medical negligence claims?
ART occupies a unique place in the healthcare setting because the doctor-patient relationship is affected by commercial tension. Fertility clinics are big businesses with a for-profit model with many companies publicly listed on the ASX. The more treatment cycles a patient undergoes, the greater the profit available for the owners. This creates a perception that the treatment recommended by a doctor isn’t always in the patient’s best interests.
Sometimes commercial pressures in some instances mean there may not be full disclosure about realistic chances of success. This became such a problem in the industry that it prompted an investigation by the ACCC into potentially false and misleading representations being made about consumers’ prospects of success. This is only one element of an industry that lacks cohesive oversight.
If something has gone wrong, what are my options?
Because of the unique contractual relationship between the parties, there are a number of causes of action available including medical negligence, breach of contract and/or consumer law breaches. The interplay between these areas of law and the remedies available will depend on the loss suffered. We can advise you on the most appropriate case strategy which will be tailored to the facts in your case.
