A Womb with a <i>Mother</i> in View: Reflections on Conflicting Analyses of Wrongful Birth (a Response to Professor Chris Bruce)

Abstract

In a recent paper, Chris Bruce (2008) comments that Nicolette Priaulx, using legal reasoning argued that the British courts' ruling in [the wrongful birth] cases have been inconsistent and unsupportable. This paper takes the contrary view, arguing that the court's behaviour can be explained using economic reasoning. Insofar as Bruce's fascinating paper raises a much broader range of issues of interest to me, it is this passage which captures my particular attention. In light of my earlier contribution to the Journal of Legal Economics (hereafter, JLE), which provides a lengthy critique of the recent developments in the wrongful conception/birth case law in the UK, in this note I seek to explore what I consider to be critical and problematic aspects of the law and economics approach to these wrongful birth cases, as forwarded by Chris Bruce; in doing so, I restrict my response to the following interrelated questions: (1) Why is it that Professor Bruce and I should find ourselves so profoundly in as to the British courts' management of these wrongful birth cases? What lies at the heart of this disagreement? (2) Should there really be a disagreement at all, if, as is it commonly claimed, that economists employ the positive scientific approach to investigate the rationale underlying the development of the common law? (3) Why do I find an economic analysis of the wrongful birth cases unconvincing? How could it convince me?