Parental Rights and the “Wrongful Birth” of a Healthy Child

Background

Wrongful birth is a term used by the courts for a claim by the parents of a child where the child is born as a result of negligent treatment or advice. The expression is misleading in that it is the negligent act or omission of the medical practitioner that is wrongful and not the birth. The two main broad categories of such a claim are: failed sterilisation/vasectomy; and failure to warn about a specific disability. Damages may be paid for the physical and emotional pain of pregnancy but when it comes to compensation for the cost of bringing up a healthy child, it depends on the common law jurisdiction. In England, for example, following decisions in the House of Lords, no compensation is payable, which is in contrast to parts of Australia. However, an unusual case in England has led to calls for a review of the law there. The case involves possibly the first wrongful birth claim founded on breach of contract by an IVF clinic rather than clinical negligence.

Key issues

For some time, the common law in Australia accepted that where the parental right to avoid pregnancy or a failed termination was thwarted by clinical negligence, a claim for damages could arise. For a healthy child, compensation was limited to the “pain and suffering” to the mother in the pregnancy and labour. The more problematic question had been what about compensation for the rather more substantial cost of rearing the child? In England, the House of Lords rejected claims in McFarlane v Tayside Health Board (2000) and again in Rees v Darlington Hospital Trust (2003). Their Lordships decided it was against public policy to pay compensation for raising a normal healthy child.

Meanwhile, in Australia in 2003, the High Court considered Cattenach v Melchior. The State of Queensland and the defendant, Dr Melchior, argued the birth of a healthy child did not constitute “harm” and should not be compensated. Raising a child is a “blessing” where the benefit of raising a child may outweigh the cost. While acknowledging the public policy argument, a majority considered it a matter of legal principle rather than policy. The doctor concerned had accepted liability to pay the mother damages for the pregnancy and childbirth but by a majority it was decided the doctor should be also liable for the costs of raising the child. It was considered unacceptable to allow damages for one foreseeable consequence of the negligence but not the other.

Following Cattenach, the position in common law is that parents in Australia are entitled to damages for negligence, including compensation for the costs of raising a healthy child, but they are limited by statute in some states, including New South Wales, where the costs of child rearing are only available if the child has a disability.

In New South Wales, if the child is born healthy, compensation is only payable for the costs associated with the pregnancy and labour. The Civil Liability Act 2002 (s.71) limits the award of damages for the birth of a child stating:

(1) the court cannot award damages for economic loss for

• the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or
• any loss of earnings by the claimant while the claimant rears or maintains the child.

BUT

(2) Subsection 1(a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

The recent English case, ARB v Hammersmith Hospital (2017), also concerns the birth of a (healthy) child after a frozen embryo was implanted into the ex-partner of ARB. She forged his signature to fake consent. The clinic had signed a contract not to thaw an embryo without written consent and, as this had not been properly obtained, they were in breach of contract.

The claimant won every relevant legal point and yet the application of the “policy” point borrowed from McFarlane and Rees that a healthy child is not a burden, allowed the IVF clinic to avoid the normal consequences of a breach of contract.

The judge rejected submissions that the claim for the costs of the child rearing was too remote and found that ARB had succeeded on all issues relating to the primary case. However, “policy” objections applied to the claim and prevented the claimant from recovering damages. The judge observed that the decisions in McFarlane and Rees were limited to the tort (“wrong”) of negligence but held that it would apply to contract claims for not taking reasonable care.

The judge concluded that while “he has lost this case ... my judgment must be seen as a complete and personal vindication for ARB”. He had been deceived by his ex-partner and “let-down” by the clinic but was not entitled to compensation. Recognising the importance of the point, the judge gave permission for an appeal.

What does it mean?

The parents’ position in NSW regarding clinical negligence where a healthy child is born “wrongfully” is clear. The parents cannot claim the costs of raising the child, this only being available if the child has a disability.

The case of ARB in England is under appeal but provides a new approach to a different aspect of a wrongful birth case. If followed, it could extend the notion of damages beyond tort to breach of contract. This would not be binding in Australia should a similar case arise, but it might be persuasive.

Wrongful birth should not be confused with “wrongful life”, which is where a child with a severe disability brings a legal action (usually by the child’s guardian) for failure to prevent the birth.

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