What is considered a wrongful birth claim?
Wrongful birth claims arise from negligent conduct in health care settings which have caused either an unwanted or unintended pregnancy (wrongful conception). Wrongful births may also arise from a planned pregnancy, with an unintended result.
These can include cases where the pregnancy would have been lawfully terminated at an earlier stage (due to a diagnosable genetic abnormality for example).
Examples of the types of cases in this category can include:
- Negligently performed vasectomy or sterilisation.
- Negligent post-operative testing after vasectomy or sterilisation.
- Negligent advice on the risks of pregnancy after certain gynaecological procedures such as tubal ligation.
- Negligent advice on contraception.
- Failure to diagnose pregnancy.
- Negligently performed genetic testing and/or counselling.
- IVF errors.
- 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).
Making a wrongful birth claim and compensation
In a wrongful birth claim, only the parents have a claim. For policy reasons, in Australia, the High Court has held that there can be no claim brought by the child for ‘wrongful life’.
In NSW section 71 of the Civil Liability Act 2002 applies to limiting the recovery of compensation for the economic harm to the additional costs associated with rearing or maintaining a child who suffers from a disability.
Parents can claim for any physical or psychiatric injury they sustain associated with the birth of a child with a disability. The mother can also claim general damages (also known as non-economic loss) for maternal pain, suffering and distress resulting from the pregnancy and delivery.
In most jurisdictions of Australia parents can claim for their loss of earnings and future earning capacity as a result of having to care for and raise a child with a disability. However, in NSW only the loss of earnings during the pregnancy, or after the birth of a child if a physical injury from the delivery or a psychiatric injury impacts the ability to work, can be claimed.
Some of the legal aspects of damages for wrongful birth claims are not settled in Australian law – whether the time given by the parent to care for the child is compensable and when a parent’s responsibility to care and provide for the child ends.
Examples of wrongful birth cases in Australian Courts
A significant wrongful birth case in Australia was the 2003 High Court decision of Cattanach v Melchior.
The 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 performed 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 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 years. The High Court confirmed the availability of damages for the cost of raising the child, regardless of whether the child suffered a disability or not.
NSW quickly introduced legislation to ensure that such claims could not be made for children without disability. Queensland and South Australia have taken similar steps.
Two other significant decisions were the 2006 High Court cases of Harriton v Stephens and Waller v James. Both claims concerned the birth of 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 and the child had no claim. 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).
If you have been a victim of a wrongful birth incident, one of our solicitors can advise you about your options in an obligation-free consultation. You can call us on (02) 4050 0330 or book an appointment online.
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