A Letter from the UK: Tort Law and Damages for the Unwanted Child

Journal of Legal Economics, Mar 2008 by Priaulx, Nicolette M

Abstract If a healthy child born as a result of clinical negligence in family planning techniques is a "blessing" which should not resound in child maintenance damages, can an exception be created for the birth of a disabled child? If so, should the law then permit a further exception for the disabled parent of a healthy child? And, even if the healthy child is not the proper subject-matter of compensation, is this the same as saying that those who actively sought to avoid parenthood suffer no "harm" at all? Exploring a line of decisions in the UK where such questions have recently arisen, the author discusses the problematic development of the reproductive torts and the question as to what claimants might now expect to recover when their reproductive plans to avoid parenthood are set-back.

Introduction: Discussion of the Opinion

If a healthy child born as a result of clinical negligence is a "blessing" which should not resound in child maintenance damages, can one create an exception for the birth of a disabled child? If so, should the law then permit a further exception for the disabled parent of a healthy child? And, even if the healthy child is not the proper subject-matter of damages, is this the same as saying that those who actively sought to avoid parenthood suffer no loss at all? Over the last six years, such questions have arisen in the English courts following the ruling of the UK's highest appellate Court, the House of Lords, in the case of McFarlane v Tayside Health Board ([2000] 2 AC 59). Departing from the normal principles of tort law, their Lordships in this case determined that parents of an unplanned but healthy child born as a result of a wrongful conception were no longer entitled to recover damages reflecting the costs of its maintenance. That McFarlane did not straightforwardly apply to cases where either the child or the parent is disabled, not only led to the lower courts creating a series of difficult exceptions, but culminated in a second House of Lords' ruling on this subject in the case of Rees v Darlington Memorial Hospital NHS Trust ([2003] UKHL 52). While various commentators reflecting on the case of Rees have claimed that English law in relation to unplanned births is now something of a "mess," as this note considers, the most problematic aspect of the law in this area has been the differential responses of the courts to cases involving "healthy" and "disabled" children, where the availability of damages for the costs of child maintenance has pivoted upon the presence or absence of disability. Questioning the legitimacy of such an approach, the author argues that in the context of these reproductive torts, it is critical that the courts accept that the birth of any child (irrespective of health or disability) will always bring about an additional and significant responsibility for its parents - if there is a relevant difference in the emotional, financial and caring responsibility that results, then this can only be a matter of extent, not kind. Noting the need for a full resolution of the reproductive torts, the article goes on to examine the most significant and pressing question in this field for UK lawyers and clinicians alike: what is the future for wrongful birth and wrongful conception claims?

McFarlane and the "Healthy" Child

The readership of this journal may well be familiar with the kinds of scenarios which lead to parents bringing wrongful conception and birth suits against doctors and health authorities. These range from clinical mishaps in family planning techniques including negligently performed abortion and sterilisation, the provision of incorrect results following post-operative testing, and in case of wrongful birth, negligent failures in genetic counselling, whether actual diagnosis or information provision. Claiming that in the absence of such negligent treatment the "unwanted" child would not have been born,2 parents have typically sought damages under two heads; first, for the pain and suffering attendant on the "personal injury" of pregnancy and birth, and, second, for the costs of child maintenance. While for over a decade parents were able to seek both heads of damages from the UK courts where clinical negligence resulted in the birth of a healthy or disabled child (both viewed as holding harmful repercussions which should sound in damages), in 1999, the House of Lords adjudication of McFarlane v Tayside Health Board ([2000] 2 A.C. 59) brought one dimension of this trend to a close. Here, the House of Lords, the highest appellate court in the UK, was confronted by two claimants, Mr. and Mrs. McFarlane who had been (incorrectly) assured by doctors that the husband was no longer fertile following his vasectomy operation. Having dispensed with contraceptive methods, Mrs. McFarlane became pregnant and gave birth to their fifth child, Catherine. Mrs. McFarlane claimed damages for the pain and suffering attendant upon pregnancy and birth, and both pursuers (plaintiffs/claimants) claimed for the costs of rearing their healthy child. Despite the Health Board's contention that the processes of conception, pregnancy and childbirth were natural events, thereby "pure economic loss,"3 the majority of the House (Lord Millett dissenting) found little difficulty in construing such events as actionable physical harm to the mother. Therefore, while reaching little agreement as to the extent of damages, their Lordships found that Mrs. McFarlane should be entitled to recovery for the pain and inconvenience of the pregnancy and for those expenses arising as a result of the pregnancy.