Mistress loses claim over lover's vasectomy

PETER VICTOR

Family planning clinics cannot be held responsible when a married man whose vasectomy operation has reversed itself makes a mistress pregnant, two Court of Appeal judges ruled yesterday.

Lord Justice Peter Gibson said the British Pregnancy Advisory Service had no duty of care or responsibility to divorced teacher Alison Goodwill when it gave advice to Ross MacKinlay, who was still living with his wife and children.

"At that time they had no knowledge of her, she was not an existing sexual partner of Mr MacKinlay but was merely, like any other woman in the world, a potential future sexual partner of his, that is to say a member of an indeterminately large class of females who might have sexual relations with Mr MacKinlay during his lifetime."

Lord Justice Thorpe warned that any woman starting a sexual relationship has a duty to protect herself against unwanted pregnancy and to take independent advice on whatever facts her lover tells her. He added: "A woman exploring the development of a sexual relationship with a new partner takes much on trust before experience corroborates or exposes his assurances."

They threw out a damages claim against the BPAS by Mrs Goodwill, now 48, of Oxford, and allowed an appeal by the clinic against the refusal of Oxford Crown Court in March last year to dismiss the claim as being "frivolous or vexatious".

Cherie Booth QC, representing Mrs Goodwill, had told the judges that the BPAS arranged a vasectomy for Mr MacKinlay in 1984. The service informed him three months later that semen samples were negative and that he no longer needed to use any other form of contraception.

In March 1988, Mrs Goodwill began a relationship with Mr MacKinlay, who told her of his operation. She had her coil removed in May that year, but neither knew that the vasectomy underwent a spontaneous reversal. A year later she became pregnant, but by the time she realised, it was too late for an abortion and she gave birth to a daughter on 5 November 1989.

Mrs Goodwill claimed that the BPAS was negligent because it failed to warn Mr MacKinlay that a future sexual partner could be made pregnant if the vasectomy reversed itself. She claimed she suffered loss and damage because of the cost of the birth, her daughter's upbringing and loss of income.

Miss Booth argued that a doctor performing a vasectomy owed a duty of care not only to the current person's partner but also to any other with which the man had sexual relations.

But Lord Justice Gibson ruled: "The doctor who performs a vasectomy on a man on his instructions cannot realistically be described as employed to confer a benefit on the man's sexual partners in the form of avoiding pregnancy."

He added: "The doctor is concerned only with the man, his patient, and possibly that man's wife or partner if the doctor intends her to receive and she receives advice from the doctor in relation to the vasectomy and the subsequent tests."