Wrongful Birth Claims

A significant wrongful birth case in Australia was the 2003 High Court decision of Cattanach v Melchior. The Melchiors already had two daughters when Mrs Melchior decided to undergo voluntary sterilisation by way of a tubal ligation. Mrs Melchior was of the understanding that during a medical procedure performed when she was 15, her right ovary and ovarian tube had been removed. She told this to her gynaecologist, Dr Cattanach, who performed the sterilisation and accordingly, the doctor placed a Filshie clip on the left fallopian tube only. Although the right fallopian tube could not be seen on an ultrasound performed prior to surgery, the right tube was in fact intact, and Mrs Melchior subsequently became pregnant and gave birth to a healthy son. Mrs and Mr Melchior sued Dr Cattanach and successfully argued that he had provided negligent advice, failing to warn them that the right ovary might be intact and that if it were, Mrs Melchior stood a much higher risk of conceiving and that she should have a procedure to confirm whether the right tube had in fact been removed. They claimed damages for the pain and suffering associated with childbirth and the costs of raising their son until the age of 18 years. The High Court confirmed the availability of damages for the cost of raising the child, regardless of whether the child suffered a disability or not. NSW quickly introduced legislation to ensure that such claims could not be made for children without disability. Queensland and South Australia have taken similar steps. Two other significant decisions were the 2006 High Court cases of Harriton v Stephens and Waller v James. Both claims concerned the birth of disabled children. In the first case, the mother had been infected with the rubella virus. In the second case, the father had passed on an Anti-thrombin 3 (ADT) deficiency. In both cases, the High Court held that wrongful life is not a valid cause of action and the child had no claim. Proving damage would require an impossible comparison between a life with disabilities (the child’s present state) with non-existence (the state of the child if negligence had not occurred). If you have been a victim of a wrongful birth incident, one of our solicitors can advise you about your options in an obligation-free consultation. You can call us on 1300 808 933 or book an appointment online.