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Responsibility of a clinic for improperly impregnating a woman with sperm not coming from her partner · Legal News
The negligent performance of a clinic in the application of the assisted reproduction technique, which determined the twin pregnancy of a woman with reproductive material of unknown male other than her partner, determines her civil responsibility and the obligation to compensate the mother and the Children born of this treatment for the material and moral damages suffered.
This was resolved by the Provincial Court of Las Palmas in a ruling dated May 16, 2016 (number 226/2016, speaker Mrs. García de Yzaguirre).

The facts

The actress and the man who was then their sentimental partner went to the clinic demanded for the application of an assisted reproduction technique. The woman had no physical impediment to being a mother naturally, however, the man was vasectomized, so it was imperative to go to such assisted reproductive technique to be a biological father again.

For this purpose, an in vitro fertilization was performed, after a testicular biopsy to obtain sperm from the man, with which to fertilize an oocyte from the female patient previously extracted by ovarian puncture and subsequent transfer of one or more embryos obtained inside the woman.

As a result of this treatment the actress gave birth to two twin children. However, it is believed that who was then his partner and with whom he underwent the fertilization treatment agreed with the defendant, is not the biological father of the same, which determined the subsequent separation of the couple and that it was the actress who Should take care of the care and attention of minors alone.

In response to an action brought against the clinic in which the treatment was carried out, the lower court decision partially upheld it and ordered the defendant to pay a total sum of € 243,750 (€ 78,000 to each of the children for material damages plus € 39,000 Euros each for moral damages and 9,750 euros for moral damages), plus the legal interests of the amount that has been condemned since the date of filing the claim.

The AP considers the appeal and raises the sentence to the defendant to compensate each of the minors in the amount of € 120,000 for moral and material damages suffered, and to the plaintiff with € 75,000 for moral damages suffered.

Responsibility of the clinic for negligent performance

In the first place, the Court considers it proven that the act that caused the harm (the twin pregnancy of the plaintiff through the assisted reproductive technique contracted with the defendant with reproductive material of unknown male other than that of her partner), is a consequence of the action Negligent in the control of identification and traceability of the reproductive material by the defendant in the development of the contracted activity, there being a contractual breach attributable to the fault of the entity as a result of which damage has occurred both to the plaintiff and to the Minor children of this one.

The essential purpose of the contract for the plaintiff, who has no fertility problems, was to obtain a pregnancy from her partner (vasectomized male). This essential purpose was accepted and known by the defendant as the one for which contractually committed the means and the provision of specialized technical (medical-biological) services, forming an integral part of the contract. Therefore, it being established that the biological father of the said minors is not the then partner of the plaintiff, there is clearly an incorrect contractual action, which contravenes the agreement.

This result of contractual breach is attributable to the fault or negligence of the said entity, which has sole control of the samples and reproductive material of both the male and the female, as well as of other third parties, with whom the fertilization of the Oocytes to obtain the embryos effectively transferred to the female.

Quantification of damages suffered by children

As for the harm done, the hearing distinguishes between the mother and the children born.

With respect to the children, firstly, compensation for material damages of 70,000 euros for each one, for the loss of the maintenance over who should have been his biological father (pension whose amount was previously determined by judicial decision, even if it were On a provisional basis, in accordance with the needs of minors and the financial capacity of the father).

The Court welcomes the calculation made by the plaintiff taking into account the monthly pension multiplied by the years not only in that they will continue to be minors, but in the predictable

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