A lesbian couple have won the right to be compensated by their Canberra obstetrician for the wrongful birth of one of their twins.
The former Canberra women have successfully appealed against an ACT Supreme Court decision that obstetrician Sydney Armellin had not been negligent when he implanted one of them with two embryos during an IVF procedure when she wanted only one.
The woman gave birth to healthy, non-identical twin girls in July 2004, and the couple sought $348,000 in damages for the cost of raising one of the girls. At the original hearing, the court heard the birth mother had signed a form consenting to the implantation of ''one to two embryos''.
But she was told by the nurse that she could change her mind up to and including the day of the procedure.
On the morning of the procedure, she had not told anyone at the centre about her wish to have only one embryo.
In the moments before she went under general anaesthetic, when Dr Armellin asked her whether she wanted one or two embryos implanted, she said she wanted only one.
He explained to her that even one embryo could produce identical twins, and she said ''don't even joke about it'', before she was sedated.
The court heard Dr Armellin, who was supervising the embryologist implanting the embryos, assumed she had contacted the clinic already, and that what he was about to implant was one embryo.
It was not until after he had carried out the procedure that the mistake was discovered.
Lawyers for the couple appealed yesterday against Justice Annabelle Bennett's finding that it had been 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. Justice Bennett found that a system had been in place at the Canberra Fertility Centre that led to the mistake, and that Dr Armellin, relying on this system, had not breached his duty of care to the woman.
But on appeal, the women's barrister, Robert Crowe, SC, said that there had been no such system in place, as the woman had not been told she needed to let the clinic know of her choice.Dr Armellin's barrister, Tony Bartley, SC, argued that his client ''was not the master of ceremonies responsible for others under his control'', and that he had been entitled to assume the clinic staff knew of the patient's wishes.
In a unanimous decision, Chief Justice Terence Higgins, Justice Richard Refshauge and Justice Shane Marshall overturned the original decision and allowed the appeal.
They ordered that damages of $317,000 plus costs be paid to the couple, which includes $234,600 for the cost of raising the child, including fees for a private Steiner school.
The couple were also granted an indefinite suppression order on their names, to protect the identities of the children.
Lawyers for Dr Armellin said yesterday they would not consider appealing until the judges published their reasons.
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