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...
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
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  1 WLR 1397
McFarlane vs Tayside Health Board  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
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[ 6 ]. Abortion Act (1967)
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[ 8 ]. Fallows v Randle (1997) 8 Med LR 160
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[ 10 ]. Doiron v Orr (1978) 86 DLR 719 at 722
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[ 14 ]. Allan v Greater Glasgow Health Board (1993) 17 BMLR 135
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