A hospital in Belgium has been ordered to compensate a couple for their “shock” and “impoverishment” after they ended up having three children by IVF treatment owing to a mistake at its fertility clinic.
It is the first time the Belgian courts have found that a healthy child can be the cause of loss to parents.
The case involved a Spanish couple who had a son with beta thalassaemia, a genetic disorder that leads to a lack of oxygen travelling to parts of the body, and for which a bone marrow transplant is a potential solution.
The couple decided to have a second child who could act as a donor – a so-called saviour sibling. They attended a fertility clinic at the Universitair Ziekenhuis Brussels hospital where doctors were willing to use in vitro fertilisation and “pre-implantation diagnosis” to ensure their second child conceived was a suitable donor.
The doctors developed several embryos of which three were healthy and one was suitable as a donor. The hospital mistakenly implanted the wrong embryo in the mother and the pregnancy led to the birth of twins. Neither girl was able to be a donor to their brother.
The distraught couple tried again at a hospital in Madrid. A healthy fourth child, who was suitable as a donor, was born in 2018. The long-awaited bone marrow transplant is said to have taken place last year.
According to the Flemish newspaper De Standaard, the couple subsequently filed a lawsuit in Brussels, in response to which a judge awarded damages of €27,000 (£23,000) to the mother and €11,000 to the father, for “the shock they suffered after learning that the twins were not suitable as donors” and for the “anxiety and risks generated by a new pregnancy”.
The judge ruled that the couple had “wanted two or three children within their family project, but under no circumstances four”.
UZ Brussel hospital was also ordered to pay compensation of €5,000 to the oldest child for the delay in his transplant. The court additionally awarded the couple material compensation, estimated at €25,000, to cover “the impoverishment caused by the presence of a fourth child in the family”.
The birth of “saviour siblings”, in which doctors pick an embryo for implantation, is contentious. In the UK the fertility watchdog, the Human Fertilisation and Embryology Authority, relaxed its rules in 2004 on embryo screening to allow the birth of so-called designer babies.
In 2010 nine-year-old Megan Matthews, from King’s Lynn in Norfolk, became the first child in the UK to benefit from the successful operation of the entire process of a child being selected and born as a donor.
Megan had suffered from Fanconi anaemia, which prevented her body from making blood. Through the work of medical teams in Cambridge, Bristol and Nottingham, her parents had a son, Max, whose umbilical cord blood was preserved.
He later underwent an operation to recover bone marrow, which was then successfully used in Megan’s transplant. The parents said at the time that they did not regard Max as a “saviour sibling” as they already had the intention to expand their family but that natural conception left relatively slim chances of the new child being a perfect tissue match for their daughter.