There is a general assumption that human beings have an innate desire, and a natural ability, to conceive, give birth and care for their offspring, a view which is backed up by the European Convention on Human Rights (the Convention). Article 12 includes the right to found a family. There are, however, a significant number of would-be parents of either gender who are infertile, or biologically incapable of having children and, in a world where significant advances have been made in technological reproduction, these would-be parents may well believe that they have a right to procreate by whatever means they choose and join the ranks of those who have become parents by natural means.

In contrast to those who long for children, there are those who do not share their desires and who wish to avoid being encumbered with a child or who seek compensation in circumstances in which they would have been unwilling to conceive a child had they been given correct medical information.

A third category of persons exists which consists of those who are deemed to lack the capacity to make decisions about procreation and the court may be asked to make orders to prevent them from having a child when it would be in their best interests not to procreate.

In this chapter, I propose looking at a number of recent legal decisions in the jurisdiction of England and Wales relating to these three categories.

THE DESIRE TO PROCREATE

Three of the decisions in this first section relate to women who wanted to undergo fertility treatment to fulfil their desire to have a child. The fourth decision concerns a man who was deceived by his wife into believing that he was the biological father of a child conceived by way of IVF.

DAMAGES TO FUND SURROGACY FOLLOWING INFERTILITY CAUSED BY NEGLIGENCE: XX v. WHITTINGTON HOSPITAL NHS TRUST (2017)

The Facts

Between 2008 and 2013, XX, a woman aged 29, had regularly complained of gynaecological symptoms to the medical staffat the Whittington Hospital NHS Trust (the Trust). Smear tests and biopsies were carried out but no diagnosis was made until the middle of 2013 when XX was told that she had invasive cervical cancer. She required treatment by surgery and radiotherapy.