Burden or Blessing? Legal Claims Burden or Blessing? Legal Claims Arising From a New LifeArising From a New Life

Alasdair MacleanAlasdair Maclean

The University of GlasgowThe University of Glasgow

Risk Management and Medico-Legal issues in Women's Healthcare 2004 2004

Legal Basis

•Negligence

•Duty of care

•Breach of duty

•Damage

•Legally recognised

•Caused by breach of duty

TERMINOLOGY

•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

•Prenatal harm – claim made by the child for harm caused while still in utero.

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.

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).

Wrongful Life

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

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 -

•Economic loss

•Not a policy decision

•Pure or consequential economic loss

McFarlane v Tayside HB

•‘Not fair just or reasonable’ - unable to offset benefits of having a healthy child: Lords Slynn, Steyn and Hope

•No assumption of responsibility for loss: Lord Slynn

•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

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

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.

Distributive Justice•Objectives include:

•Need

•Capacity to benefit

•Desert

•Utilitarian - maximise happiness in community

•Merit

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

The Disabled Child

•Birth of a disabled child foreseeable

•No difficulty in deeming that the surgeon has ‘assumed responsibility’

•The purpose of the operation was to avoid childbirth including the child with disability

•Limited group of people affected

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

Disabled Child: Wrongful birth

•Recovery for costs associated with disability•Hardman v Amin (2000) 59 BMLR 58 – child’s needs

•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…

•Rand v E. Dorset HA [2000] Lloyd’s Law Rep Med 181– parental resources

The Disabled Parent: Court of AppealThe Disabled Parent: Court of Appeal

•Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, CA

•Healthy child, blind mother

•Negligent sterilisation - wrongful pregnancy

•Damages awarded for the extra costs associated with the mother’s disability

The Disabled Parent: House of LordsThe Disabled Parent: House of Lords

• 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.

•Rees v Darlington [2003] UKHL 52

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

McKay v Essex AHA

•Slippery slope argument that it would allow similar claims against parents

•Near impossible task of assessing damage – if it can be considered a legally recognised form of damage

•Sanctity of life, value of handicapped life and the duty to the child to abort

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

US arguments

•Turpin v Sortini:

•As a matter of policy and other areas of law, life not always preferable

•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’.

•Infringes the mother’s right to reproductive choice also wrongs the future child

Turpin v Sortini

•No recovery for general damages because:

•No difficulty in calculating damages

• Illogical to allow parents and not child to recover

•Special damages allowed because:

•Any such damages would be purely speculative

•Impossible to determine if child had suffered injury

US Arguments

•Harbeson v Parke-Davis Inc 656 P.2d 483 (1983)

•Tort not just concerned with logic but also with: fairness, predictability and deterrence

•Pragmatic approach – needs of the afflicted child

•Procanik v Cillo 478 A.2d 755 (1984)

•Allowing special damages will further societal objectives.

Ethical Arguments

•The child is a beneficiary not a victim

•Damages is the wrong remedy – should be offered euthanasia (Harris)

•Sanctity of life

•Devalues the disabled

•Society should provide for the disabled

•The child has not been wronged (Harris)

•The child has not been harmed (Feinberg)