Actions for Wrongful Birth and Wrongful Conception
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
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
References: Abortion Act (1967) Al Hamwi v Johnston [2005] Lloyd’s Rep Med 309 Allan v Greater Glasgow Health Board (1993) 17 BMLR 135 Benarr v Kettering Health Authority [1988] 138 NLJ Rep 179 Congenital Disabilities (Civil Liabilities) Act 1976 Doiron v Orr (1978) 86 DLR 719 at 722 Fallows v Randle (1997) 8 Med LR 160 Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397 McFarlane vs Tayside Health Board [2000] AC 59 2000 SC 1 HL McFarlane vs Tayside Health Board 1997 SLT 211 (1996) [ 2 ]. Jackson E (2010)Medical Law: Text, Cases, and materials p727 Oxford University Press [ 3 ] [ 6 ]. Abortion Act (1967) [ 7 ] [ 8 ]. Fallows v Randle (1997) 8 Med LR 160 [ 9 ] [ 10 ]. Doiron v Orr (1978) 86 DLR 719 at 722 [ 11 ] [ 14 ]. Allan v Greater Glasgow Health Board (1993) 17 BMLR 135 [ 15 ]