In successful wrongful birth cases, compensation is available for the unwanted pregnancy and labour and the additional costs of bringing up a disabled child (if applicable). Wrongful birth compensation is not available for bringing up a healthy child.
Below we explain in more detail what compensation you might be entitled to with a successful claim, along with advice on managing wrongful birth compensation and why it is not a likely option for you to invest your compensation into a personal injury trust fund.
Compensation for unwanted pregnancy and labour
In all wrongful birth cases where negligence has led to an unwanted pregnancy or failure to terminate an unwanted pregnancy, the claimant is entitled to:
- Compensation for the physical and emotional pain, incapacity and distress of the unwanted pregnancy and labour – set in the region of £5,000. This compensation could be higher if the pregnancy and labour is unusually complicated or the mother suffers from postnatal depression.
- Financial losses, including loss of earnings resulting from the unwanted pregnancy
- A payment in the region of £15,000.00 in recognition of the loss of the claimant’s right to limit the size of their family.
The mother or father will also compensated for the costs of an additional sterilisation procedure if the case involved a failed sterilisation.
If the baby is healthy, then the claimant cannot be compensated for the cost of bringing up the child. If the baby is disabled, then the additional costs of bringing up a disabled child can be recovered.
Compensation for the additional costs of raising a disabled child
Following the decisions made by the House of Lords in McFarlane v Tayside Health Board and Rees v Darlington Memorial Hospital, parents can no longer recover compensation for the cost of bringing up a healthy child when the birth of that child was not intended. If the unintended child is disabled, parents can recover the additional costs of care associated with bringing up a disabled child. This might include the cost of adapting a home for disabled access, buying communication aids and accessing treatments and therapies, such as physiotherapy and speech and language therapy. In extreme cases (such as a child with severe cerebral palsy) these costs can run into millions of pounds.
Managing wrongful birth compensation
Because the bulk of compensation you receive in a wrongful birth case is for the financial costs of raising a disabled child, we advise that you manage the award as you would any other lump sum (see below). This is because you’ll be limited on what can be paid into a personal injury trust fund.
Why is a personal injury trust fund not suitable for wrongful birth compensation?
A personal injury trust fund is designed to help claimants that have suffered a physical injury to ring-fence their damages so that this money cannot be taken into account when means-testing welfare benefits. However, you can only place compensation into a personal injury trust fund when it relates to a physical or mental injury.
In a case of wrongful birth, the bulk of the compensation is for direct financial losses related to the additional costs of raising a disabled child (not your physical or mental injury).
The only wrongful birth damages that you can place in a personal injury trust fund are those awarded for the pain and suffering relating to pregnancy and childbirth and/or any psychiatric injuries. But because these damages are relatively modest at around £5,000 – and the costs of setting up a personal injury trust fund are not proportionate to the award – you may find that setting up the fund is simply not worthwhile. In addition, the threshold of entitlement to state benefits may not be affected by this level of compensation.
How can I invest my wrongful birth compensation funds?
You can invest your compensation as you would invest in any other fund e.g. regular savings or an inheritance. As solicitors, we’re unable to provide you with financial advice because the Financial Conduct Authority does not regulate us. But we can signpost you to trusted independent financial advisers who can advise you on the best way to invest for a regular income for your child.
Most people chose a mixed portfolio of investments and savings to allow for short-term and long-term investment and access to funds.