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Burden or Blessing? Legal Claims Arising From a New Life. Alasdair Maclean The University of Glasgow Risk Management and Medico-Legal issues in Women's Healthcare 2004. Legal Basis. Negligence. Duty of care. Breach of duty. Damage. Legally recognised. Caused by breach of duty.

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Burden or Blessing? Legal Claims Arising From a New Life


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Burden or Blessing? Legal Claims Arising From a New Life

Alasdair Maclean

The University of Glasgow

Risk Management and Medico-Legal issues in Women's Healthcare 2004

legal basis
Legal Basis
  • Negligence
  • Duty of care
  • Breach of duty
  • Damage
  • Legally recognised
  • Caused by breach of duty
terminology
TERMINOLOGY
  • Prenatal harm – claim made by the child for harm caused while still in utero.
  • Wrongful life - claim made by the child that he has suffered harm by having been born. Compensation is sought for being born or for non-negligent harm (e.g. disability) suffered as a consequence of being born
terminology4
TERMINOLOGY
  • Wrongful birth - parental claim in negligence for the costs resulting from the birth of a child
  • Wrongful birth - negligent failure to provide the opportunity to abort the fetus. Child disabled (not invariably) - pregnancy wanted but not disabled child.
  • Wrongful pregnancy - negligence occurs pre-conception e.g. negligent sterilisation. Both pregnancy and birth unwanted. Child may be either disabled or not.
wrongful life
Wrongful Life
  • Rejected by English Court of Appeal in:
    • McKay v Essex AHA [1982] 2 All ER 771; [1982] QB 1166
  • No Scottish cases
  • Allowed by some US jurisdictions:
    • California: Turpin v Sortini 643 P.2d 954 (1982)
  • Rejected if related to the circumstance of birth rather than a physical disability. E.g. illegitimacy – Zepeda v Zepeda 190 NE.2d 849 (1963).
wrongful life6
Wrongful Life
  • France has allowed wrongful life – but the French National Assembly subsequently passed legislation that prevents a wrongful life claim
mcfarlane v tayside hb 2000 ac 59
McFarlane v Tayside HB [2000] AC 59
  • House of Lords would allow damages for pregnancy and birth (Lord Millett dissenting - would allow limited sum for loss of autonomy)
  • Rejected claim for cost of child rearing -
  • Not a policy decision
  • Economic loss
  • Pure or consequential economic loss
mcfarlane v tayside hb
McFarlane v Tayside HB
  • No assumption of responsibility for loss: Lord Slynn
  • ‘Not fair just or reasonable’ - unable to offset benefits of having a healthy child: Lords Slynn, Steyn and Hope
  • Restitutionary justice impossible to achieve - benefit offset difficult or impracticable: Lord Clyde
  • Liability disproportionate to wrong: Lords Clyde and Hope (Lord Millett not persuaded by this argument)
  • If parents accept advantages of child must also take responsibilities: Lord Millett
mcfarlane v tayside hb9
McFarlane v Tayside HB
  • Claim denied on grounds of DISTRIBUTIVE JUSTICE: Lord Steyn explicitly
  • Implicit in the judgments of all their Lordships
  • ‘Instinctively, the traveller on the Underground would consider that the law of tort had no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing’ - Lord Steyn
distributive justice
Distributive Justice
  • ‘The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches’ per Lord Steyn.
distributive justice11
Distributive Justice
  • Objectives include:
  • Need
  • Capacity to benefit
  • Desert
  • Merit
  • Utilitarian - maximise happiness in community
the disabled child
The Disabled Child
  • Parkinson v St James and Seacroft Hospital NHS Trust [2001] 3 All ER 97, CA
  • Negligent sterilisation
  • Child potentially disabled - mother chose not to terminate
  • Child born with behavioural problems - Autistic Spectrum Disorder
  • Damages awarded for costs arising from disability
the disabled child13
The Disabled Child
  • Birth of a disabled child foreseeable
  • Limited group of people affected
  • No difficulty in deeming that the surgeon has ‘assumed responsibility’
  • The purpose of the operation was to avoid childbirth including the child with disability
the disabled child14
The Disabled Child
  • Limited to the costs of disability it would be fair just and reasonable to award damages
  • Distributive justice principles would allow recovery because ordinary people would consider it fair providing costs limited to those arising from disability
disabled child wrongful birth
Disabled Child: Wrongful birth
  • Recovery for costs associated with disability
  • Hardman v Amin (2000) 59 BMLR 58 – child’s needs
  • Rand v E. Dorset HA [2000] Lloyd’s Law Rep Med 181– parental resources
  • Lee v Taunton and Somerset NHS Trust [2001] 1 FLR 419
  • ‘I do not believe that it would be right for the law to deem the birth of a disabled child a blessing, in all circumstances and regardless of the extent of the child’s disabilities’ – per Toulson J
  • No barrier to recovery for full maintenance costs. BUT…
the disabled parent court of appeal
The Disabled Parent: Court of Appeal
  • Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, CA
  • Negligent sterilisation - wrongful pregnancy
  • Healthy child, blind mother
  • Damages awarded for the extra costs associated with the mother’s disability
the disabled parent house of lords
The Disabled Parent: House of Lords
  • Rees v Darlington [2003] UKHL 52
  • 4:3 majority allowed the appeal and denied the claimant damages for the additional costs associated with her disability
  • The majority adopted Lord Millett’s approach in McFarlane to allow the recovery of a conventional sum of £15,000 in general damages for the harm done to the mother’s autonomy: ‘the opportunity to live her life the way that she wished and planned’ – Lord Bingham
  • The minority would have allowed recovery for the extra costs, while recognising the arbitrariness of such an award.
current position
Current Position
  • Wrongful pregnancy - costs allowable in relation to pregnancy and birth
  • Maintenance costs not allowed, but recovery of £15,000 for harm to parental autonomy
  • In both wrongful pregnancy and wrongful birth, the costs associated with a ‘significant disability’ are allowed but this is now open to challenge
  • The extra costs associated with parental disability are not allowed
mckay v essex aha
McKay v Essex AHA
  • Sanctity of life, value of handicapped life and the duty to the child to abort
  • Near impossible task of assessing damage – if it can be considered a legally recognised form of damage
  • Slippery slope argument that it would allow similar claims against parents
congenital disabilities civil liabilities act 1976
Congenital Disabilities (Civil Liabilities) Act 1976
  • Jane Fortin has argued that wrongful life claims are not excluded by the Act
  • Kennedy & Grubb argue that
    • s1A introduces a preconception wrongful life claim.
    • If ‘ability’ interpreted to include opportunity then s1(2)(a) may also allow such claims
us arguments
US arguments
  • Turpin v Sortini:
  • Infringes the mother’s right to reproductive choice also wrongs the future child
  • Kaus J. (at 961-962) – ‘it is hard to see how an award of damages to a severely handicapped or suffering child would “disavow” the value of life’.
  • As a matter of policy and other areas of law, life not always preferable
turpin v sortini
Turpin v Sortini
  • No recovery for general damages because:
  • Impossible to determine if child had suffered injury
  • Any such damages would be purely speculative
  • Special damages allowed because:
  • Illogical to allow parents and not child to recover
  • No difficulty in calculating damages
us arguments23
US Arguments
  • Harbeson v Parke-Davis Inc 656 P.2d 483 (1983)
  • Allowing special damages will further societal objectives.
  • Procanik v Cillo 478 A.2d 755 (1984)
  • Pragmatic approach – needs of the afflicted child
  • Tort not just concerned with logic but also with: fairness, predictability and deterrence
ethical arguments
Ethical Arguments
  • The child is a beneficiary not a victim
  • The child has not been harmed (Feinberg)
  • The child has not been wronged (Harris)
  • Society should provide for the disabled
  • Devalues the disabled
  • Sanctity of life
  • Damages is the wrong remedy – should be offered euthanasia (Harris)