Wrongful Birth/Life etc Essay PDF

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Essay on wrongful birth/life etc for midsessional study...

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Wrongful Essay Wrongful (conception, birth, life, fertilisation) is a unique action in tort that raises interesting legal matters. It is currently an unsettled matter in New Zealand, requiring analysis of the different approaches taken in other jurisdictions.

Potential heads of damage: 1. 2. 3. 4.

Pain & suffering of pregnancy – mothers claim Cost of raising the child – parents claim Disability costs and loss of autonomy – parents claim Loss of genetic affinity – parents claim

Whitehead v Searle One of the potential heads of damage, pain and suffering of pregnancy, will only be applicable to the mother. In Whitehead, Rix LJ was prepared to recognise a duty owed to a father who took on the responsibility of a disabled child after the mother committed suicide. While the question was ultimately left open, Professor Todd argues that the duty could extend to any person who undertakes to care for the child. Therefore, it is advised that the father also attempts to claim for the cost of raising the child, disability costs and loss of autonomy and loss of genetic affinity.

1. Pain and Suffering of Pregnancy In the UK case McFarlane, the House of Lords held that a mother who became pregnant following a husband’s failed vasectomy could claim general damages for the pain, suffering and inconvenience of pregnancy and childbirth, as well as for associated expenses. In ACB (Singapore), the Court of Appeal awarded a small amount of damages to the appellant for the pain and suffering arising from the pregnancy after the use of sperm from an unknown third-party. However, in New Zealand, the Supreme Court in Allenby decided that pregnancy following a failed sterilisation constitutes personal injury and therefore would be covered by ACC. Therefore, it is not actionable at common law. Application to problem question:

2. Cost of Raising the Child In McFarlane, their Lordships held that the costs of bringing up a child was not recoverable. Lord Clyde stated that “relieving the parents of their financial obligations went beyond reasonable restitution.” In ACB, the Court followed McFarlane in failing to recognise upkeep costs as a recognisable damage. Andrew Phang Boon Leong J.A stated that in order to

establish a case for recovery of upkeep costs, the parents would have to argue that their child represented a net loss to them, and that this was fundamentally in contrast to the duty that parents had to provide to their children. Professor Todd strongly agrees with the reasoning in ACB, claiming it is entirely convincing. Furthermore, in ARB, a father tried to sue the IVF clinic after his former wife, forging his signature, used the treatment to get pregnant. The claim ultimately failed. The Court considered McFarlane and found that the same principles applied, notably the inherent difficulty of measuring the loss as well as an unwillingness to regard a child as a financial liability. In contrast, in Cattanach, the Australian High Court held that a doctor who negligently failed to sterilise a patient was in fact liable for upbringing costs on ordinary principles of negligence. This decision was heavily criticised, ultimately leading to legislation that reversed this decision. The main criticisms were outlined by Gleeson J in his dissent. Gleeson J argued that this decision treated the birth of a child as a loss, which was incalculable, and that it was inconsistent with parent-child laws. In New Zealand, J v ACC entailed a mother who claimed for the costs of upkeep of her child following a failed sterilisation. Although the claim was ultimately rejected under ACC, Cooper and Asher JJ both concurred that due to the decisions in most common law jurisdictions, and then the split in Australia, “…[it] leaves is entirely uncertain whether the costs of raising and maintaining a child would be recoverable.” Furthermore, Kos J stated in his judgment that “…that on the present and progressive state of this country’s law of torts, it is entirely likely that Cattanach v Melchior would be followed here.” However, this seems very unlikely. Not only did it receive heavy criticism internationally, but the decision was overturned through legislation. Todd agrees that Cattanach is unlikely to be followed in New Zealand. It is more probable that New Zealand would follow the reasoning laid out in McFarlane and ACB in relation to recovery of upkeep costs. Problem question answer: It is likely that NZ would follow McFarlane and ACB over Cattanach in relation to upkeep costs. Therefore, I would advise that the upkeep costs of the child are very likely to not be recoverable.

3. Disability Costs and Loss of Autonomy In Parkinson, a negligent sterilisation occurred resulting in the birth of a child, in which the child had severe disabilities. The Court of Appeal allowed a claim for extra expenses attributable to the severe disabilities. Hale LJ’s judgment stated that the analysis treats a disabled child as having exactly the same worth as a non-disabled, affording him the same dignity and status. It only acknowledges that he costs more. In Khan, a mother consulted the doctor to avoid giving birth to a child with haemophilia, stating that she would terminate if the child had it. The incorrect test was carried out and the baby was born with both haemophilia and autism. The Court of Appeal followed Parkinson, holding that the costs associated with the haemophilia were recoverable, however, found that the costs associated with the autism were not, as they were outside the scope of the duty of care. The claim of loss of autonomy came to light in the case of Rees. The claimant was blind and sought sterilisation, this ultimately failed and she became pregnant. By majority in the House of Lords, it was held that the mother in a wrongful conception case could recover a fixed sum

of £15,000 to represent the interference with her autonomy. However, in ACB, loss of autonomy as a claim was rejected. His Honour stated that such a development would pose significant problems of legal clarity and would go against established principles on recovery of damages.

4. Loss of Genetic Affinity In ACB, the Court of Appeal recognised a new head of damage, loss of genetic affinity. His Honour stated that “the real loss or injury is that relating to the mother’s desire to have a child of her own, with her husband…” The Court considered Rees, but instead, awarded 30% of the cost of upbringing the child to reflect the seriousness of the loss. However, Professor Todd disagrees with this. Although he agrees with the need to compensate their loss, he states that the method of calculation is open to objection. Todd argues that it seems inconsistent to reject an award for the costs of bringing up the child, but then determine the damages in loss of genetic affinity by reference to those rejected costs.

Childs Claim...