'Wrongful Birth' following failed sterilisation.

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‘Wrongful Birth’ is the legal term used for a child born as a result of negligent treatment. This falls into two categories, children born with disabilities not detected in the antenatal period and those born following failed sterilisation/vasectomy (and abortion). In some countries the latter is referred to as ‘Wrongful Pregnancy’. Pay-outs for these has provoked considerable debate and controversy. The courts do not support the view that women should be expected to terminate the pregnancy to mitigate the loss. In English Law until 2000 the courts awarded large sums for wrongful pregnancy including costs of bringing up a child, loss of earnings, school and nursery fees. Then, in the case of Macfarlane v Tayside Health Board ([2000]2 AC 59) the House of Lords reversed the previous law and declined to award any upkeep for a healthy child stating ‘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’. Just 2 years later, in the case of Parkinson v St James and Seacroft Hospital NHS Trust ([2002] QB 266) when a severely disabled child was born following a sterilisation, the courts upheld payment of expenses for bringing up the child so far as they followed from the disability. However, when a healthy child was born to a disabled mother (Rees v Darlington Memorial Hospital NHS Trust; [2003] UKHL 52) it was alleged that costs of bringing up a healthy child would not be different for a healthy parent when compared with a disabled parent so should not be viewed differently to the Macfarlane case. No damages were awarded for the extra costs of parenthood arising from a mother's own disability. This case also resulted in the law being settled since then. Now a sum of £15,000 is awarded to compensate a woman for the ‘infringement of her right to limit her family size’ and £5000 for the pain and suffering of pregnancy and labour. In addition, the claimant is awarded for loss of earnings during the maternity leave period and a one-off cost for equipment such as a cot and pram. This seems to be a unanimous move all over the world, and most countries will not allow damages to be sought for the cost of raising children. The monetary cost of wrongful birth claims for healthy babies is millions of pounds to the taxpayer and may be considered ethically dubious given that failure is a known risk of the surgery. In addition, the psychological impact on the children themselves on discovering that they were ‘expensive mistakes’ should be considered. However, it may also be argued that to deny costs of childbearing undermines the compensatory principle that is at the very heart of the law on damages. In addition, payment for a disabled child but not the healthy one introduces what most would regard as an unpalatable distinction between a healthy baby being a ‘blessing’ but not the disabled child. None declared. Completed disclosure of interests form available to view online as supporting information. Please note: The publisher is not responsible for the content or functionality of any supporting information supplied by the authors. Any queries (other than missing content) should be directed to the corresponding author for the article.