Is the tort of genetic affinity a distinct and novel tort, or a reformulation of the “rights to parenthood” which exists within other torts? Should the tort exist within Singaporean tort law?

Picture this: in the months after having a child through in-vitro fertilisation (“IVF”), you learn that your child was not a creation of you and your partner, but with a complete stranger’s genetic material because of a procedural mistake. Such was the horror that unfolded for the appellant in ACB v Thomson Medical Pte Ltd. [1]. There, the court held that there was a loss of genetic affinity — a loss of genetic relatedness with the child. Due to its similar focus on the right to choose not to have a child, the tort of genetic affinity (“TOGA”) is a reformulation of the “right to parenthood” which exists within other torts. But it should not exist in Singapore tort law, unless it is modified.

The three existing torts are: “wrongful life”, where a child possessing genetic health risks would not have been born if not for the medical practitioner’s negligence in disclosing the risks; “wrongful birth”, which seeks recovery for the loss of option to terminate the pregnancy had the risks been known in time; and “wrongful pregnancy”, which addresses the circumstance where a mother conceives not of her own volition, but at the expense of the negligent medical practitioner [2]. The “right to parenthood” in natural conception, commonly focuses on the right to choose not to have a child.

The TOGA deals with the situation where parents who desired to have a genetically similar child through IVF failed to achieve so because of medical negligence. As the IVF clinic used a stranger’s genetic material instead, the parents conceived a child contrary to their desires. It is hence similarly centred around the loss of autonomy to choose to be a parent as one desires. For example in “wrongful birth”: had the parents known of the mistake, they may have chosen to terminate the pregnancy. The parents lost the ability to choose to have a child with their own genetic material.

Arguably, the TOGA is novel as it specifically targets IVF-related claims, unlike the others. However, it is not distinctive enough to fall outside this ambit for a completely unique claim. The TOGA is a reformulation as it is “a change to a plan or idea” [3] of existing torts, expanding the scope of the “right to parenthood” within other torts to IVF-related claims. This adapts to the new norms in society where IVF becomes more commonly utilised. Thereby, the TOGA is one way that Singapore law has changed to address problems that arise as society progresses, and is hence somewhat a reformulation of the “right to parenthood”.

The TOGA should not exist within Singaporean law in its existing form. IVF is often used when both individuals are fertile but unable to naturally conceive a child (“event A”), or when one individual is infertile, and the couple selects a donor to substitute for the sperm/ovum (“event B”).

Currently, the TOGA only allows claims under event A, which creates inequitable outcomes. In event A, the IVF clinic negligently used a third-party donor resulting in a loss of genetic affinity as the child is related to only one of the two intended parents. In event B, where the donated genetic material used was not from the selected donor, the child is still genetically related to one parent as intended, thus there is no loss of genetic affinity. In effect, although both parties suffer losses from the same negligence, only parties facing event A would be able to claim for damages under TOGA. This would be unfair to parties facing event B, who would be hindered from seeking compensation.

Additionally, the TOGA should not exist in Singapore law as it has potential societal side-effects [4]. Firstly, there are risks perpetuating discrimination within families and society based on traits like skin colour. Secondly, the child could feel isolated due to biological differences from their parents and this may result in psychological harm. Lastly, it may perpetuate the idea that genetic ties are superior to non-genetic ones. Therefore, as these downsides potentially disturb the balance of harmony in Singapore, it should not exist in Singapore law.

Overall, the TOGA is a novel tort. However, it is not distinct, instead reformulated from existing torts. The TOGA should not exist in Singapore law as it may lead to inequitable outcomes and societal side effects. In future, the court could modify the TOGA to mitigate its limitations. For example, adapting it into a tort of loss of intended genetic relations would allow it to cover a wider range of IVF claims related to medical negligence, including negligence in event B. As more Singaporeans consider IVF, it is more important than ever that parties who are harmed by medical negligence can receive justice.

[1] ACB v Thomson Medical Pte Ltd [2017] SLR 0918 (“ACB”).

[2] Esther Lim Rui Hsien, “Does The Claim For Loss Of Genetic Affinity Have Any Place In United States

Jurisprudence?” Drake Law Review Vol. 67.

[3] Cambridge Dictionary, ‘Reformulation’ (@CambridgeWords6 November 2024)

<https://dictionary.cambridge.org/dictionary/english/reformulation> accessed 10 November 2024.

[4] Suresh Viswanath, “An Analysis Of Genetic Affinity as an Actionable Head of Damages – ACB v Thomson

Medical Pte Ltd” from the Singapore Law Review.

Written by: Anni Huang, Wesley Harrison, Cheryl Soong & Ngo Zun Yin