Burden or Blessing? Legal Claims Arising From a New Life

1. 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

2. Legal Basis • Negligence • Duty of care • Breach of duty • Damage • Legally recognised • Caused by breach of duty

3. 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

4. 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.

5. 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).

6. Wrongful Life • France has allowed wrongful life – but the French National Assembly subsequently passed legislation that prevents a wrongful life claim

7. 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

8. 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

9. 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

10. 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.

11. Distributive Justice • Objectives include: • Need • Capacity to benefit • Desert • Merit • Utilitarian - maximise happiness in community

12. 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

13. 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

14. 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

15. 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…

16. 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

17. 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.

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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)