Actions for wrongful birth and wrongful conception Actions for wrongful birth and wrongful conception frequently raise moral, ethical and philosophical issues. Legal judgments have often been contradictory and on occasions have arrived at their conclusions without addressing all the pertinent issues. Actions for wrongful conception or wrongful birth are variants of clinical liability and negligence. The initiative to bring an action lies with the parents. This is different for actions for wrongful life where the action is brought by the child who alleges injury in utero or has a preventable congenital condition.
There has only been in one such case in English law – McKay v Essex Area Health Authority, and the Court of Appeal rejected the notion the life itself could be compensatable damage. However in this situation an action can often be brought by the parents for wrongful birth Where a child is born unplanned there may be alleged negligence in allowing that conception to occur or where because of negligence the mother goes on to give birth. If a sterilization procedure is negligently performed and this results in a pregnancy there may be a miscarriage or the baby may be still born or the mother may decide to abort the pregnancy.
In these cases the courts would have little difficulty in awarding costs in relation to the suffering and allied costs. The woman may go on to give birth to a live baby. The claim would then be for the costs of a child which they did not want and it is this which the courts have found problematic. An action for wrongful pregnancy can be brought in contract if the care was provided privately, or in tort. In the case of a sterilization being undertaken privately the courts will hold that there is a duty to exercise reasonable care in carrying out the procedure but not that there is an implied warranty that sterilisation will be achieved.
For instance in Eyre v Measday the Court of Appeal rejected the assertion that the doctors statement that vasectomy and female sterilization were irreversible amounted to guarantees of sterility. In effect actions brought in contract will differ little from those actions brought in negligence. Where an action is brought in tort it needs to be demonstrated that there was a duty of care to the patient, that this duty had been breached and the breach had caused foreseeable damage. There is no doubt that a doctor owes a duty of care to his patient when performing a sterilization procedure.
Whether this duty extends to the partner depends on proximity. For instance in the case of a failed vasectomy a duty would extend to women who were in the doctors contemplation at the time of the surgery such as a partner but not to future partners. This proximity rule applies to the financial losses from the resulting pregnancy but not to the physical injury element of her claim regarding the pregnancy. Interestingly whilst it is the act of sexual intercourse which leads to the pregnancy rather than the negligently performed sterilization procedure it does not amount to a novus actus interveniens.
Although in Sabri-Tabrizi v Lothian Health Board it was considered to do so. A woman’s decision not to undergo an abortion cannot be a novus actus as it would imply that a woman had a right to an abortion which contravenes the Abortion Act (1967) Duty of care in a case of wrongful pregnancy is still largely governed by the Bolam principle in that a doctor’s actions will not be held negligent if it conforms to a practice which would have been adopted by a responsible body of medical opinion. However, a judge may prefer one interpretation of the facts by experts to another. This occurred in Fallows v Randle where Stuart Smith, L.
J. preferred an opinion that clips had been placed negligently in a case of female sterilization to an alternative view that they had slipped off. Damages following a wrongful pregnancy fall into two categories. Those arising directly from the pregnancy including pain and suffering of childbirth together with loss of earnings and associated expenses and these will generally be awarded by the English courts. The second is for the costs associated with raising the resultant child. Whilst the costs associated with a child’s upbringing are also foreseeable their award has posed a greater dilemma for the courts.
A child resulting from a pregnancy arising from a doctor’s lack of care would appear to have a tortious claim to such damages. The concept of compensating for a healthy child has led to moral and policy concerns. In the Canadian courts some years ago this matter was aired in Doiron v Orr the judge awarded damages for mental anguish related to the pregnancy but there would be no liability for the cost of bringing up an unsought child. A range of views has developed from never awarding damages, always doing so or doing so in a graded fashion by offsetting the benefits of parenthood with the economic costs.
In an action for unwanted pregnancy in Udale v Bloomsbury Area Health Authority there was an award for pain and suffering along with loss of earnings following a negligently performed operation. However an award for the economic costs of bringing up a child was rejected. In his judgment Jupp J felt that the joy and love of a child should be set against economic loss. There was a different view in Emeh v Kensington and Chelsea and Westminster Area Health Authority where the Court of Appeal awarded damages which included the cost of rearing a child.
The court rejected the policy objections cited in Udale. This became the leading case and was followed by similar cases. The awards included special damages for any disabilities and in one case the costs of private education. These judgments appeared to clarify the situation regarding wrongful birth and were not at odds with tort law in other areas. The court in Allan v Greater Glasgow Health Board expressly stated that there were no grounds of principle or of policy to prevent an award of damages for the upbringing of a child as a result of an unwanted pregnancy.
This position of stability was altered in McFarlane v Tayside Health Board in a case involving a child born following an unsuccessful vasectomy. This was an unremarkable set of circumstances but the judgment departed from what had become at that point the accepted pattern for such cases. Here, surprisingly at first instance it was held that a normal pregnancy leading to the birth of a healthy child was a natural event which could not form the basis for damages. The concept of offsetting was also rejected as it was unacceptable to place a specific value on the life of a child.
This decision was reversed in the Inner House where Lord Justice Clerk concluded that there was no overriding consideration to public policy which the awarding of damages would contravene. This judgment appeared to re-establish the status quo. The case was appealed to the House of Lords presumably to confirm the established equilibrium between English and Scottish law The House decided by a 4:1 majority that the mother’s claim in respect of pain and suffering due to pregnancy should stand, whilst the Lords were unanimous that the McFarlanes were not entitled to costs of bringing up the child.
The decision in McFarlane was undoubtedly a reversal in the law in this area. In the years leading up to this case there was judicial unease with some judges expressing regret that a doctor making a mistake in sterilization may be liable for the full costs of any subsequent child’s upbringing. These costs could be very high including sums for private education and there began to emerge the feeling of unfairness and the belief that precious NHS resources should not be diverted to the upkeep of a healthy child.
Interestingly in other areas of tort law it has never been argued that damages should be reduced as the defendant could put the funds to better use elsewhere. These views suggest however that public policy reasons underlay the McFarlane decision. The views of the Lords were not consistent and this has lead to subsequent difficulties. Brook LJ said in the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust in relation to McFarlane, “Our task has been made more difficult because the five members of the House of Lords spoke with five different voices”.
The costs of maintenance for the child’s upbringing were considered to be pure economic costs. In tort law special rules apply to the recovery of pure economic loss and the three-stage Caparo v Dickman test applies. The case must satisfy that i) the loss was foreseeable, ii) that there was sufficient proximity between the doctor and the patient and finally, iii) it should be fair, just and reasonable to impose a duty of care in these circumstances. A majority of the Lords rejected the claim on the third limb of the test imposing liability on the health authority for the costs of their healthy child would not be fair, just or reasonable.
Several different reasons were given for this conclusion including the offset calculation (benefit a child brings v costs of upbringing). It was considered “impossible” or “unseemly” to do this or a child was always “a benefit to society to consider otherwise would be morally offensive”. In other areas of tort this does not seem to pose moral issues, for instance following the death of a child due to negligence the award in not reduced to reflect the saving on clothes etc. Offset is usually on a like for like basis but here emotional benefit is being offset against economic loss.
It is of course questionable that a child will always be a benefit. This was recognized in Rees v Darlington Memorial Hospital NHS Trust where a fifth child being born to a single mother would result in her mental breakdown was recognized but because of McFarlane could not be argued. In addition the act of undergoing sterilization would suggest that at that point at least the parents had weighed up the advantages and disadvantages of a further child and decided it would not be beneficial to them to do so. Proportionality was cited as a reason as the cost of upbringing would be out of proportion to the degree of fault.
This argument would hold little sway in other areas of tort law. The idea of distributive justice was used by Lord Steyn appealing to public opinion and stating “Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor”. Concern that limited NHS funds should not be diverted to the parents of healthy children was also stated in the House of Lords judgment on Rees v Darlington Memorial Hospital NHS Trust.
Lord Millet raised the novel idea that there could be a “conventional sum” of ? 5,000 awarded to reflect the interference with the parents freedom to limit the size of their family. Later in Greenfield v Irwin the Court of Appeal also considered future loss of earnings to be part of the costs of rearing a child and hence since McFarlane applied were not recoverable. In this case the assertion that failure to provide financial support would contravene the Human Rights Act 1998 Schedule I, Art 8 – Respect for Family Life – was also dismissed. McFarlane dealt with a healthy child but their lordships did raise the ossibility that the situation concerning a disabled child might be different. In Parkinson there was an award of special costs associated with a disability. This case is also noteworthy for the views of Lady Howe, the first female judge to express a view on the McFarlane judgment who listed the effect on a woman’s body of a normal pregnancy. It is also of interest in that it was agreed that the child’s disability was not attributable to a breach of duty on the defendant’s part although his birth by failing to properly clip a Fallopian tube was.
That liability was apportioned in Parkinson for a disabled child and not in McFarlane raises the moral question as to whether a disabled life is of less “value”, but this can be easily countered by the greater financial needs of a disabled compared to a healthy child. At present the rule laid down by McFarlane is that there should be no compensation for the cost of raising a healthy child. The Court of Appeal ruling in Parkinson means that recompense is available in tort for all excess costs imposed by a disability on the child.
A further variant was considered in Groom v Selby in which a neonate born of a pregnancy which was not noted at the time of sterilization developed salmonella meningitis three weeks after birth. The cause of meningitis was a bacterium acquired during the birth itself but before independent existence and therefore she was “never a healthy child”. In Rees v Darlington Memorial Hospital NHS Trust the additional costs of a negligently performed sterilization of a visually handicapped mother involved in bringing up a normal child were allowed.
It was held that McFarlane did not apply as it only concerned healthy parents. This does raise the question of what disabilities in the mother might be allowed, for instance can these including mental illness or financial disability? The matter however was considered on appeal where by it was held that Rees should not be distinguished as the child was healthy so McFarlane did apply. Thus the normality of a child being the deciding factor not the presence of any disability in the mother.
A further slightly unsatisfactory factor in the appeal in the House of Lords was that part of the decision was on the basis that it would be improper to reverse the House of Lords decision on McFarlane within such a short period (four years). However Cattanach v Melchior in the High Court of Australia felt by a majority 4:3 that costs of an unsought child should be compensatable The McFarlane case further impacts on cases of wrongful birth where the child is disabled. The available damages consist of those costs for caring for a disabled child arising in excess of those for raising a normal child.
Damages in Rand v East Dorset Health Authority were related to the parents’ means whilst in Hardman v Amin they were related to the child’s needs. In a further case, Lee v Taunton and Somerset NHS Trust, Toulson J returned to a problem which had concerned the Lords of Appeal in McFarlane, that is, injustice and unreasonableness. This in his opinion of cannot be pleaded by the health authority when a heavy penalty is imposed. A further interesting point is illustrated by the case of Al Hamwi v Johnston which concerned ante-natal counselling of a mother with a condition thought to be Down’s syndrome.
Simon J. dismissed the case finding that she had been given appropriate counselling although conceded that she may have been confused. In addition he felt that to place an obligation on a doctor to ensure the information is understood is “to place too onerous an obligation on the clinician”. This view may be felt to be at odds with modern medical practice, and adds to the air of imprecision surrounding the law in relation to wrongful birth. It appears that there is still room for clarity in this area of the law. Bibliography Jackson E (2010)Medical Law: Text, Cases, and materials.
Oxford University Press Mason JK and Laurie GT (2006)Law and Medical Ethics References Abortion Act (1967) Al Hamwi v Johnston  Lloyd’s Rep Med 309 Allan v Greater Glasgow Health Board (1993) 17 BMLR 135 Benarr v Kettering Health Authority  138 NLJ Rep 179 Benarr v Kettering Health Authority  138 NLJ Rep 179 Bolam v Friern Hospital Management Committee  1WLR 582 Caparo v Dickman  2 AC 651 Cattanach v Melchior  HCA 38 Congenital Disabilities (Civil Liabilities) Act 1976 Doiron v Orr (1978) 86 DLR 719 at 722
Emeh v Kensington and Chelsea and Westminster Area Health Authority  3 All ER 1044, CA Eyre v Measday  1 All ER488 Fallows v Randle (1997) 8 Med LR 160 Goodwill v British Pregnancy Advisory Service  1 WLR 1397 Greenfield v Irwin  EWCA Civ 113 Groom v Selby  EWCA Civ 1522 Hardman v Amin  Lloyd’s Rep Med 498 Lee v Taunton and Somerset NHS Trust  1 FLR 419 McFarlane vs Tayside Health Board  AC 59 2000 SC 1 HL McFarlane vs Tayside Health Board 1997 SLT 211 (1996) McFarlane vs Tayside Health Board 1998 SC 389
McKay v Essex Area Health Authority  QB 1166 Parkinson v St James and Seacroft University Hospital NHS Trust EWCA Civ 530 Parkinson v St James and Seacroft University Hospital NHS Trust EWCA Civ 530 Rand v East Dorset Health Authority  Lloyd’s Rep Med 181 Rees v Darlington Memorial Hospital NHS Trust  EWCA Civ 1522 Rees v Darlington Memorial Hospital NHS Trust  UKHL 52 Rees v Darlington Memorial Hospital NHS Trust  UKHL 52 Sabri-Tabrizi v Lothian Health Board  BMLR 190 Udale v Bloomsbury Area Health Authority 2 All ER 522
Walkin v South Manchester Health Authority  1 WLR 1543 ——————————————– [ 1 ]. McKay v Essex Area Health Authority  QB 1166 [ 2 ]. Jackson E (2010)Medical Law: Text, Cases, and materials p727 Oxford University Press [ 3 ]. Eyre v Measday  1 All ER488 [ 4 ]. Goodwill v British Pregnancy Advisory Service  1 WLR 1397 [ 5 ]. Sabri-Tabrizi v Lothian Health Board  BMLR 190 [ 6 ]. Abortion Act (1967) [ 7 ]. Bolam v Friern Hospital Management Committee  1WLR 582 [ 8 ]. Fallows v Randle (1997) 8 Med LR 160 9 ]. Walkin v South Manchester Health Authority  1 WLR 1543 [ 10 ]. Doiron v Orr (1978) 86 DLR 719 at 722 [ 11 ]. Udale v Bloomsbury Area Health Authority 2 All ER 522 [ 12 ]. Emeh v Kensington and Chelsea and Westminster Area Health Authority  3 All ER 1044, CA [ 13 ]. Benarr v Kettering Health Authority  138 NLJ Rep 179 [ 14 ]. Allan v Greater Glasgow Health Board (1993) 17 BMLR 135 [ 15 ]. McFarlane vs Tayside Health Board 1997 SLT 211 (1996) [ 16 ]. McFarlane vs Tayside Health Board 1998 SC 389 [ 17 ].
Mason JK and Laurie GT (2006)Law and Medical Ethics 346 [ 18 ]. McFarlane vs Tayside Health Board  AC 59 2000 SC 1 HL [ 19 ]. Jackson E (2010)Medical Law: Text, Cases, and materials p731 Oxford University Press [ 20 ]. Benarr v Kettering Health Authority  138 NLJ Rep 179 [ 21 ]. Parkinson v St James and Seacroft University Hospital NHS Trust EWCA Civ 530 [ 22 ]. Caparo v Dickman  2 AC 651 [ 23 ]. Rees v Darlington Memorial Hospital NHS Trust  UKHL 52 [ 24 ]. ibid [ 25 ]. Greenfield v Irwin  EWCA Civ 113 [ 26 ].
Parkinson v St James and Seacroft University Hospital NHS Trust EWCA Civ 530 [ 27 ]. Groom v Selby  EWCA Civ 1522 [ 28 ]. Rees v Darlington Memorial Hospital NHS Trust  EWCA Civ 1522 [ 29 ]. Rees v Darlington Memorial Hospital NHS Trust  UKHL 52 [ 30 ]. Cattanach v Melchior  HCA 38 [ 31 ]. Rand v East Dorset Health Authority  Lloyd’s Rep Med 181 [ 32 ]. Hardman v Amin  Lloyd’s Rep Med 498 [ 33 ]. Lee v Taunton and Somerset NHS Trust  1 FLR 419 [ 34 ]. Al Hamwi v Johnston  Lloyd’s Rep Med 309