Conference Issue 2018


Who’s liable for wrongful birth?

A NZ academic has called for recognition of a cause of action for injury to reproductive autonomy.

Stephen Todd, Professor of Law at NZ's University of Canterbury, told the NZILA conference in Christchurch such a move would give effect to a principle of law with a clear purpose and well-defined boundaries, and would be a logical, sensible evolution from existing authorities.

In a separate paper on the issue, provided to Resolve, Prof Todd said "the special character of such a claim, concerning as it does certain interferences with individual choices about the conception of human beings, surely favours its acceptance".

He said the law needed to keep abreast of new legal problems, particularly as IVF techniques advanced, giving choices to an increasing number of intending parents.

"Development by the courts of a unifying, coherent principle of liability, sensitive to ethical complexities and setting limits to the kind of cases that ought to be actionable, would be a desirable response."
Accepting the principle, the question then arose of how to quantify a plaintiff's loss. "While the nature of such a claim is unique, the damage [is] a form of non-pecuniary loss and can be calculated much in the ordinary way. A modest figure by way of general damages can be taken as a starting point, and this can vary in accordance with factors that bear upon the gravity of the plaintiff's loss. Special damages also may be awarded in suitable cases," Prof Todd said.

At the NZILA conference, he outlined a series of cases.

In the UK, in the leading decision in McFarlane v Tayside Health Board, the House of Lords held that a mother who became pregnant after her husband's failed vasectomy could claim general damages for the pain, suffering and inconvenience of pregnancy and childbirth and for associated expenses, but the parents could not recover the costs of bringing up their child.

It was seen as contrary to public policy to treat the birth of a child as a "loss" that was compensable in damages.  Subsequently, in a case where the child was born with disabilities, the English Court of Appeal applied McFarlane in rejecting a claim for ordinary upbringing costs, but allowed a claim for extra expenses attributable to the disability.

By contrast, in Cattanach v Melchior the High Court of Australia held, in a 4:3 majority decision, that a doctor who negligently failed to sterilise a patient was liable for upbringing costs on the application of ordinary principles of negligence. "The plaintiffs' loss was not the coming into existence of the parent-child relationship but simply the expenditure the plaintiffs had incurred or would incur in the future," Prof Todd said. 

However, he said three states had since overturned Cattanach "because they found the outcome unpalatable".

Wrongful life cases in the UK and Australia, McKay v Essex Area Health Authority (1982, CA) and Harriton v Stephens (2006, HCA). were actions by disabled children alleging negligence by their mothers' medical advisers in failing to diagnose that the mothers had contracted rubella. Both failed. In each case, had the defendant not been negligent and advised the mother of the foetus's disability, she would have opted for an abortion and the plaintiff would never have been born. 

"Life itself is not actionable because they would have had no life if they were aborted," Prof Todd said. In the High Court case, Justice Michael Kirby dissented, saying sometimes life with disabilities was worse than no life at all.

ACB v Thomson Medical Pte Ltd (Sing CA 2017) was a new claim that provoked discussion.

The appellant and her husband tried to conceive a child through IVF but, due to Thomson Medical's negligence, the appellant's ovum was fertilised using an unknown third party's sperm. She gave birth to a healthy child without knowing about the error but, on discovering what had happened, sought damages for her pregnancy and the cost of bringing up the child.

She was successful on the pregnancy claim. "She wanted a child, but not any old child, one with her husband," Prof Todd said. But on the cost of the child's upbringing, Justice Andrew Phang Boon Leon said the obligation to maintain one's child was at the heart of parenthood and could not be a legally cognisable head of loss.

"To recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the mother in a position where her personal interests as a litigant would conflict with her duties as a parent," Prof Todd said.

But there was a loss and the court invented it, a loss of "genetic affinity". The mother wanted a child with her husband to maintain an intergenerational genetic link.

The court found 30% of the costs of the child's upbringing would "reflect the seriousness of the loss and was just, equitable, and proportionate to the circumstances", Prof Todd said.

In PP v DD (2017 Ont CA), DD had a sexual relationship with PP and deceitfully told him she was taking the contraceptive pill. She conceived and gave birth to a healthy child. PP sought damages for emotional harm and disruption to his career and finances.

Prof Todd said the House of Lords' reasoning in McFarlane had particular force where a claim was made by one parent against the other, with whom he shared the legal and moral responsibility of raising the child. The claim failed.

Prof Todd said damages for injury to reproductive autonomy may be included as an element in damages awarded under existing causes of action, such as personal injuries claims, without special difficulty.

"In the absence of a separate cause of action, the courts need to recognise interference with or injury to reproductive autonomy in itself as an actionable head of damage."

Prof Todd said a line needed to be drawn and, before any claim might lie, there needed to be foreseeable damage that was more than trivial and was objectively recognisable in the parents' circumstances.

In the absence of injury or harm, mere deprivation of the ability to choose should not suffice. "Purely cosmetic choices which are not fulfilled should not qualify as actionable damage," he said.

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Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.