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Wrongful conception, birth and life

Previous: Negligence and the duty of care

Wrongful conception, birth and life, or simply wrongful birth as I shall now refer to it, generally refers to cases where unplanned pregnancy and/or birth occurs due to a negligent sterilisation operation carried out by a medial practitioner.

Prior to McFarlane v Tayside Health Board [1999], if wrongful birth occurred, the medical practitioner (or rather vicariously, the NHS trust) could be liable to provide the entire cost of bringing up the resulting child. However, liability is now much harder to establish.

There are two claims which parents may make if wrongful birth occurs. The first is known as the mother’s claim: it refers to compensation for the pain, suffering and inconvenience associated with pregnancy. Secondly, the parents’ claim is a claim for the costs associated with raising a child who was wrongfully born.

The healthy child

Firstly, in McFarlane v Tayside Health Board [1999], it was ruled that NHS trusts could no longer be liable in parents claims, for a number of reasons. However, the mother’s claim was still allowed.

The disabled child

Secondly, in Parkinson v St James and Seacroft University Hospital NHS Trust [2002], it was ruled that although the parents’ claim for a healthy child should still fail; if the resulting child has a disability (which in itself may not be the fault of the medical practitioner), a claim will be allowed for the extra costs associated with raising the child due to their disability, those which go above and beyond the costs associated with bringing up a healthy child. This case was reasoned sensitively, with an attempt to justify that in reality, a disabled child does cost more to raise.

The disabled mother

Thirdly, however, in Rees v Darlington Memorial Hospital [2003], it was ruled that a disabled mother may not be compensated for the additional costs of raising her healthy child due to her disability. Also, an arbitrary sum of £15,000 was set for all future mother’s claims.

Controversy

The apparently straightforward law on wrongful birth is not without controversy. In Australia, and the case of Melchoir v Cattanach [2003, Australia], it was ruled that although not so in the present case, parents’ claims could succeed in future. Back on home soil, the case of McKay v Essex Area Health Board [1982] (prior to McFarlane) involved a mother and child claiming that abortion advice was not given to the mother when it was known that her child would be significantly disabled. This claim was dismissed, as the child was effectively claiming that they would rather be dead, which would impact the rule of law rather significantly.

Next: Mental Injury

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