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WRONGFUL LIFE, WRONGFUL BIRTH AND WRONGFUL CONCEPTION 1

WRONGFUL LIFE, WRONGFUL BIRTH AND WRONGFUL CONCEPTION Introduction:    

Congenital Disabilities Act 1976:  Liability for disabled children in respect of damage caused before birth. Wrongful Life – non-existence is preferable to this existence  McKay v Essex AHA [1982] OB 1166; Harriton v Stephens MLC 1104 Wrongful Birth – action brought by the parents following the birth of a handicapped child Wrongful Conception - damages for the upkeep of a child that has been born as a result of a failed sterilisation/vasectomy operation.  See previous law Allen v Bloomsbury HA [1993] 1 All ER 651

MCFARLANE V TAYSIDE HEALTH BOARD [1999] 4 ALL ER 961 1. Lord Slynn:  “a doctor’s duty was only to avoid a pregnancy and that did not extend to the costs of bringing up a child if that child was born and accepted into the family”. 2. Lord Millet:  “the law must take the birth of a healthy child to be a blessing, not a detriment.” 3. Previously in the COA per Lord Cullen:  “In the result ….the benefits of the child do not provide an answer to the claim for the costs of her upbringing. Respect for human life should not be allowed to obscure the fact that couples who have decided that they cannot afford to raise another child have been left a way to do so”.

THE EFFECT OF MCFARLANE 

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See: Rand v East Dorset HA [2000] HA [2000] 4 Lloyd’s Rep 181 Lillywhite v University College London Hospitals NHS Trust [2006] Omodele Meadows v Hafshah Khan [2017] EWHC 2990 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 6 Lloyd’s rep Med 306  LJ Hale: many “would argue that the true costs to the primary carer of bringing up a child are so enormous that they easily outstrip any benefits” and “The notion of a child bringing benefit to the parents is itself deeply suspect, smacking of commodification of the child, regarding the child as an asset to the parents.”

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WRONGFUL LIFE, WRONGFUL BIRTH AND WRONGFUL CONCEPTION 2

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52  

House of Lords majority 4-3 refused to disturb the McFarlane decision and Parkinson criticised. Waller LJ (dissenting):  “Assume the mother with four children had no support from her husband, mother or siblings, and then compare her with the person who is disabled, but who has a husband, siblings and a mother all willing to help. I think ordinary people would feel uncomfortable about the thought that it was simply the disability that made a difference.”

Final thoughts…  “ The Law Lords in Rees were simply creating their own novel scheme of compensation to acknowledge the legal wrong whilst limiting the pay-out.” (Emily Jackson: Medical Law OUP 2010)  See also Groom v Selby [2002] Lloyd’s Rep Med 1

And the Australian view… Cattanch v Melchior [2003] 

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At paragraph 91 Kirby J commented:  “The coal miner, forced to retire because of injury does not get less damages for loss of earning capacity because he is now free to set in the sun each day reading his favourite newspaper. Likewise, the award of damages to the parents for their future financial expenditure is not to be reduced by the enjoyment that they will or may obtain from the birth of the child.” Per Kirby J (see paragraph 160):  “Here is the value in the present context of the distinction between damage atributable to the effects of pregnancy and confinement and alleged damage atributable to the existence of the healthy child that is born. The first may be said to be a detriment; the second cannot possibly be so categorised … It is to be noted that if this lady were to obtain the damages she seeks, she would happily be in a position whereby she would look after her much loved child at home, yet at the same time in effect would receive the income she would have earned had she stayed at work. In my judgment that is not just compensation; it is the conferment of a financial privilege, which has nothing to do with just compensation.”

A Call for change…. again?  ARB v IVF Hammersmith [2017] EWHC 2438  First wrongful birth claims to be founded on contract  Frozen embryo  Forged consent

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WRONGFUL LIFE, WRONGFUL BIRTH AND WRONGFUL CONCEPTION 3  Did Rees apply?  Mr Justice Jay:  “I have difficulty with the notion that a private patient could succeed whereas an NHS patient could not”  “I confess that my initial disquiet for the conclusion I have reached…..Whatever my personal response to this extraordinary case, acting in obedience with clear authority and principle compels me to uphold the clinic's submission that legal policy precludes all of ARB's pleaded claims.”  “Although he has lost this case, my Judgment must be seen as a complete personal and moral vindication for ARB.”

Not the final chapter? 

“The IVF clinic was in breach of an express contractual term not to create a child without the father’s consent. The claimant won every single point germane to his primary case, but by the application of the policy” point borrowed from the House of Lords’ decisions in McFarlane and Rees – that a healthy child is a blessing rather than a detriment – the decision has conferred upon the IVF clinic effective impunity from the normal consequences of their breach of contract. It is time for the controversial decisions in Rees and McFarlane to be reviewed.”  Susanna Rickard, junior counsel for ARB  Permission to appeal

FURTHER READING: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Jackson: Chapter 15 Brazier: Chapter 11 Herring: Chapter Landmark Cases in Medical Law Chapter 10 Roberts v Bro Taff Health Authority [2002] 4 Lloyd’s Rep Med 182; Greenfield v Irwin [2001] Farraj v Kings Healthcare NHS Trust [2009] AD v East Kent Community NHS Trust [2002] Lloyd’s Rep Med 424 FP v Taunton & Somerset NHS Trust [2009] EWHC 1965 Denise Less and Michael Carter v Sarah Hussain [2012] EWHC 3513 “Return of the burden of blessing ” Dr J Ellis Cameron-Perry, (1999) NLJ December 17 pp1887-1888 Booth Penny “A child is a blessing heavily in disguise, right ?” New Law Journal Nov 23 2001 page 1738 Denyer “Failed sterilisations and costs revisited” Fam Law Feb 2004 Vol 34 p 123 Hoyano “Misconceptions about Wrongful Conception” (2002) MLR 883

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