A lesbian couple have lost a landmark case in which they sued a Canberra obstetrician for the cost of raising one of their twins to the age of 21.
In the first case of its kind in Australia, the former Canberra couple sought more than $400,000 in damages from prominent obstetrician and gynaecologist Sydney Armellin after one of them was implanted with two embryos during an IVF procedure, when she only wanted one.
The ACT Supreme Court rejected the couple's claim yesterday and ordered them to pay Dr Armellin's legal costs.
The couple are considering an appeal.
The court heard that after the twins' birth, the mother had lost her capacity to love.
The couple, whose combined income is more than $100,000, sought $398,000 from Dr Armellin to cover the costs of raising one of the girls, including fees for a private Steiner school.
In July 2004, the now 41-year-old social research and planning consultant gave birth to two healthy non-identical twin girls. She told an ACT Supreme Court hearing before Justice Annabelle Bennett last year that the unwanted twin pregnancy had soured what should have been a joyous time.
She and her partner had planned to go to England after the birth, but their plans were scrapped when they discovered they were having twins.
Justice Bennett dismissed the couple's case on the grounds Dr Armellin had not acted negligently. She also ordered that a suppression order protecting the identities of the women, who now live in Melbourne, be lifted in 28 days, giving them time to lodge an appeal.
The judge found that it had been the system in place at the Canberra Fertility Centre at the time that led to two embryos being implanted when the birth mother wanted only one. Because only Dr Armellin was named as a defendant their case failed.
''It is to be applauded that the plaintiffs intend to support their children at that stage of their lives but it is not reasonable to ask Dr Armellin to pay for this additional support,'' Justice Bennett said.
The judge went on to say that had she found Dr Armellin to be negligent she would have awarded the couple $206,000.
In August 2003 the couple began in-vitro fertilisation treatment at the Canberra Fertility Centre, at John James Hospital, for which Dr Armellin was a consultant.
In September the birth mother signed a form consenting to the implantation of ''one to two embryos'', but was told by a nurse that she could change her mind ''up to and including the morning of the procedure''.
The centre tried unsuccessfully to contact the birth mother on the day before the procedure, and by the morning of the embryo transfer she had not told anyone at the centre about her wish to have only one embryo.
Moments before she went under general anaesthetic, she told Dr Armellin, who was supervising an embryologist implanting the embryos, that she wanted only one.
Justice Bennett found yesterday it was reasonable for Dr Armellin to believe that the centre already knew of the woman's wish to have only one embryo, and that she was confirming the instructions to him. As such, he had not breached any duty of care.