Burden or Blessing? Legal Claims Arising From a New Life

1
Burden or Blessing? Legal Claims Arising From a
New Life
Alasdair Maclean The University of Glasgow Risk
Management and Medico-Legal issues in Women's
Healthcare 2004
2
Legal Basis

• Negligence

• Duty of care

• Breach of duty

• Damage

• Legally recognised

• Caused by breach of duty

3
TERMINOLOGY

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

• 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

4
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.

5
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).

6
Wrongful Life

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

7
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 -

• Not a policy decision

• Economic loss

• Pure or consequential economic loss

8
McFarlane v Tayside HB

• No assumption of responsibility for loss Lord
  Slynn

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

• 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

9
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

10
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.

11
Distributive Justice

• Objectives include

• Need

• Capacity to benefit

• Desert

• Merit

• Utilitarian - maximise happiness in community

12
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

13
The Disabled Child

• Birth of a disabled child foreseeable

• Limited group of people affected

• No difficulty in deeming that the surgeon has
  assumed responsibility

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

14
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

15
Disabled Child Wrongful birth

• Recovery for costs associated with disability

• Hardman v Amin (2000) 59 BMLR 58 childs needs

• Rand v E. Dorset HA 2000 Lloyds Law Rep Med
  181 parental resources

• 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 childs disabilities per
  Toulson J

• No barrier to recovery for full maintenance
  costs. BUT

16
The Disabled Parent Court of Appeal

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

• Negligent sterilisation - wrongful pregnancy

• Healthy child, blind mother

• Damages awarded for the extra costs associated
  with the mothers disability

17
The Disabled Parent House of Lords

• Rees v Darlington 2003 UKHL 52

• 43 majority allowed the appeal and denied the
  claimant damages for the additional costs
  associated with her disability

• The majority adopted Lord Milletts approach in
  McFarlane to allow the recovery of a conventional
  sum of 15,000 in general damages for the harm
  done to the mothers 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.

18
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

19
McKay v Essex AHA

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

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

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

20
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

21
US arguments

• Turpin v Sortini

• Infringes the mothers right to reproductive
  choice also wrongs the future child

• 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.

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

22
Turpin v Sortini

• No recovery for general damages because

• Impossible to determine if child had suffered
  injury

• Any such damages would be purely speculative

• Special damages allowed because

• Illogical to allow parents and not child to
  recover

• No difficulty in calculating damages

23
US Arguments

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

• Allowing special damages will further societal
  objectives.

• Procanik v Cillo 478 A.2d 755 (1984)

• Pragmatic approach needs of the afflicted child

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

24
Ethical Arguments

• The child is a beneficiary not a victim

• The child has not been harmed (Feinberg)

• The child has not been wronged (Harris)

• Society should provide for the disabled

• Devalues the disabled

• Sanctity of life

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