Wrongful birth is a legal concept whereby the parents of a child may be entitled to compensation if it can be proved that the birth of that child was unintended, and brought about due to a health provider’s negligence.

Here we look in more detail at wrongful birth legal issues, how claims can be proved, the legal cases that have set precedents for the success of claims and the compensation available.

How is a wrongful birth claim proved?

Why is a witness statement so important?

How can statistical information help?

How can experts help to prove wrongful birth?

Important legal cases for wrongful birth

How is a wrongful birth claim proved?

In order to succeed in a claim for wrongful birth, it’s necessary to prove two separate claims.

  • First, it’s necessary to establish that there has been negligent treatment. This means treatment falling below the standard of a competent medical practitioner in the relevant field.
  • Secondly, it’s necessary to establish that this negligence has led to a child being born in circumstances where, had the negligence not taken place, the child would not have been born.

The success of the second claim usually depends on evidence provided by one of the parents.

Why is a witness statement so important?

Where it is alleged that a practitioner failed to identify abnormalities in an unborn child, or failed to advise parents of the genetic risks to their child (prior to or after conceiving), parents must prove that if they had received this information, they would have avoided or terminated the pregnancy.

Witness evidence of the parent’s’ intentions had they received the standard medical care is therefore crucial in establishing the case. This is because it’s very difficult and emotive for parents to contemplate (in retrospect) whether or not they would have terminated a pregnancy, now that their child exists and is part of their family.

However difficult it is for parents to address this issue, they must carefully consider the issues and provide witness evidence for such a claim to proceed.

Sometimes statistics can help to establish this evidence, such as the proportion of parents who will terminate for a particular condition. Or an opinion could be given from an expert in fetal medicine on what most parents decide to do in particular circumstances.

If it cannot be established that, on the balance of probabilities, the parents would have chosen to terminate or avoid the pregnancy, then the case cannot succeed.

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How can statistical information help?

Because it can be difficult for a judge to arrive at a view on whether or not the parents would have terminated or avoided pregnancy had they received the standard care, we often use statistics to help.

Particularly useful are statistics revealing the number of terminations carried out after the diagnosis of a particular condition or birth defect. Depending on the numbers, these statistics may be persuasive evidence to put before the court.

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How can experts help to prove wrongful birth?

We draw on a wide range of medical experts to help prove wrongful birth claims.

If the case involves a failure to advise patients of a genetic risk to their unborn child, then we would ask a geneticist to give evidence. We would also instruct an obstetrician to advise on what would normally be said to a patient if they felt a genetic risk was present. Should they have referred the patient to a geneticist, the evidence of an expert geneticist would then become very important.

If the case involves a failure to diagnose fetal abnormalities during an ultrasound scan, then we would ask an expert sonographer to give evidence, as well as an obstetrician.

If the case concerned a failed sterilisation procedure, we would ask an obstetrician to give evidence.

In some circumstances we might instruct an expert in fetal medicine to give evidence, especially where there were doubts over a particular diagnosis during pregnancy.

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Important legal cases for wrongful birth

Wrongful birth is a complex area of law with a number of important cases on record.

Where negligent medical treatment was provided to the mother during her pregnancy and this resulted in injury to the child, that child has the right to bring a claim for those injuries in accordance with the Congenital Disabilities (Civil Liability) Act 1976.

Where the claim is for wrongful birth, the claim is not a claim brought by the child for his or her injuries. It is a claim brought by the parents, based on the premise that the child would not have been born had the parents received competent medical care.

In the case of McKay v Essex AHA [1982] it was held that a child cannot bring a claim for losses arising in consequence of his or her own existence, but that the child’s parents could pursue their own claim for wrongful birth. To establish such a claim, the parents had to prove both medical negligence and the fact that their child would not have been born had they received competent medical treatment.

Damages which may be recovered for wrongful birth

An unwanted pregnancy, or the continuation of a pregnancy which would otherwise have been terminated, has been held to constitute a personal injury to the mother.

Compensation for personal injury may include:

  • General damages including pain, suffering, loss of amenity etc.
  • Special damages including financial losses that relate directly to the pregnancy and birth, including loss of earnings during pregnancy.

In Rees v Darlington Memorial Hospital NHS Trust [2003] the House of Lords established a ‘conventional award’ in the region of £15,000.00 in respect of the loss of the parents’ ability to control the size of their family.  The sum was specified to be separate from the damages received by the mother for undergoing the pregnancy.  It was not intended to be compensatory but instead a measure of recognition of the wrong done.

Restrictions on recovering the costs of a child’s upbringing

Prior to 2000, the costs of bringing up the child could also be recovered in a successful claim for wrongful birth. However in McFarlane v Tayside Health Board [2000], the House of Lords decided that general maintenance costs for the child’s upbringing could not be recovered. McFarlane was a claim for the costs of bringing up a healthy child conceived following a vasectomy procedure, but the judgements in McFarlane leave open the possibility that a different position would be taken for a child with a disability.

The extent of the rule in McFarlane was tested in a subsequent case in which a healthy child was born to a disabled mother.

In Rees v Darlington Memorial Hospital NHS Trust [2003] a woman suffering from severe progressive vision impairment underwent a sterilisation procedure because she felt her condition was not compatible with motherhood. As a result of the defendant’s negligence, the sterilisation procedure failed and she gave birth to a healthy child.  The claimant argued that the difficulties caused by her own disability were equivalent to a disabled child being born to a non-disabled mother.

The House of Lords found that the general rule in McFarlane applied, and the claimant was unable to recover the cost of the child’s upbringing, or any childcare costs incurred as a consequence of her disability.

A similar decision was reached in AD v East Kent Community NHS Trust [2002]. The claimant became pregnant while detained as an inpatient at the Defendant Psychiatric Unit. The claimant’s psychiatric condition prevented her from caring for the child and the responsibility for bringing up the child fell to the maternal grandmother. The Court of Appeal held that the upbringing costs of the child could not be recovered.

Recovering the costs of bringing up a child with disabilities

In the case of Parkinson v St James and Seacroft University Hospital NHS Trust [2001] the court held that compensation should be awarded to cover the additional costs for bringing up a disabled child.

The claim of Parkinson related to a failed sterilisation operation resulting in the birth of a disabled child. The court held that damages could not be awarded for the ordinary costs of the child’s maintenance, but the parents could recover the special costs associated with bringing up their disabled child.

The court sought to restrict this rule to cases in which the child is born with a ‘significant disability’, including physical and mental impairment and severe behavioural difficulties but not ‘minor defects’.

In the year prior to Parkinson a similar decision was made in Rand v Dorset Health Authority [2000]. In that case the court confirmed that it considered Down’s syndrome to constitute a significant disability.

In the case of Groom v Selby [2001], a decision was given in relation to the timing of the child’s disability. In this case, the mother’s GP failed to diagnose her pregnancy prior to a sterilisation procedure. If the pregnancy had been diagnosed, then the mother would have terminated the pregnancy. Her baby was born healthy but contracted an infection during the birth that led to septicaemia and a neurological injury. In this case, the court held that it was reasonable for the parents to recover the losses associated with the child’s disability.

In the case of Nunnerley v Warrington Health Authority [2000], a couple failed to receive medical advice on the risk of them passing on a genetic condition to a child. They subsequently had a child with a disabling condition, but argued that if they had been properly advised, they would have terminated the pregnancy or avoided it in the first place.

The defendant argued that since the parents were not legally responsible for bringing up the child after its 18th birthday, then on this date they should stop receiving compensation for the additional costs of bringing up a disabled child. The judge held that the parents were likely to continue to provide additional care for the child well into adulthood, and could therefore continue to recover those losses.

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