Wrongful Birth Claims

These are claims where negligent conduct in a health care setting has caused either an unwanted and unintended pregnancy (wrongful conception) or where there has been a planned pregnancy but with an unintended result such that the pregnancy would have been lawfully terminated at an earlier stage, or where no steps have been taken to prevent impregnation (wrongful birth).

·         Negligently performed vasectomy or sterilisation.u003cbr/u003e·         Negligent post-operative testing after vasectomy or sterilisation.u003cbr/u003e·         Negligence advice on the risks of pregnancy after certain gynaecological procedures.u003cbr/u003e·         Negligent advice on contraception.u003cbr/u003e·         Failure to diagnose pregnancy.u003cbr/u003e·         Negligently performed genetic testing and/or counselling.u003cbr/u003e·         IVF errors.u003cbr/u003e·         Other circumstances resulting in the loss of opportunity to lawfully terminate a pregnancy (such as failure by a doctor to inform a pregnant woman of an infection or condition that would result in congenital disabilities in the child).

No. In a wrongful birth claim, only the parents have a claim. The child does not. For policy reasons, the Australia the High Court has held that there can be no claim for u003cemu003ewrongful life.u003c/emu003e

u003cstrongu003e u003c/strongu003eu003cbr/u003eThis not a settled area of the law.u003cbr/u003e u003cbr/u003eFirstly, the parents can claim for the economic harm inflicted upon them by the injury as a result of the negligence. However, in NSW section 71 of the u003cemu003eCivil Liability Act 2002 u003c/emu003eapplies, and so the economic harm is restricted to the u003cstrongu003eadditional costsu003c/strongu003e associated with rearing or maintaining a child who suffers from a u003cstrongu003edisability. u003c/strongu003eIt is not recoverable for a healthy child.u003cbr/u003e u003cbr/u003eIt is not clear though whether these additional costs can be claimed beyond the child turning 18. There is also debate and uncertainty about the availability of damages for the gratuitous care provided by a parent for the child.u003cbr/u003e u003cbr/u003eThe parents can claim for any physical or psychiatric injury they sustain associated with the pregnancy or delivery.u003cbr/u003e u003cbr/u003eThe mother can also claim general damages (also known as non-economic loss) for maternal pain, suffering and distress resulting from the pregnancy and delivery. There can be a claim made for loss of earnings during the pregnancy, or after the birth of child if a physical injury from the delivery or a psychiatric injury impacts the ability to work, but not loss of earnings solely arising from the need to raise the child.

A significant wrongful birth case in Australia was the 2003 High Court decision of u003cemu003eCattanach v Melchior.u003c/emu003eu003cbr/u003eThe 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 done 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 then 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.u003cbr/u003e u003cbr/u003eThe High Court confirmed the availability in Australia of recovering the cost of raising the child, regardless of whether the child suffered a disability or not. However, as detailed above, NSW introduced legislation to ensure that such claims could not be made for children without disability. Other States have taken similar steps.u003cbr/u003e u003cbr/u003eTwo other significant decisions were the 2006 High Court cases of u003cemu003eHarriton v Stephensu003c/emu003e and u003cemu003eWaller v James. u003c/emu003eBoth claims were for the 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. 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).