Actions for Wrongful Birth and Wrongful Conception

3277 WordsAug 11, 201314 Pages
Actions for wrongful birth and wrongful conception Actions for wrongful birth and wrongful conception frequently raise moral, ethical and philosophical issues. Legal judgments have often been contradictory and on occasions have arrived at their conclusions without addressing all the pertinent issues. Actions for wrongful conception or wrongful birth are variants of clinical liability and negligence. The initiative to bring an action lies with the parents. This is different for actions for wrongful life where the action is brought by the child who alleges injury in utero or has a preventable congenital condition. There has only been in one such case in English law – McKay v Essex Area Health Authority, and the Court of Appeal rejected…show more content…
The second is for the costs associated with raising the resultant child. Whilst the costs associated with a child’s upbringing are also foreseeable their award has posed a greater dilemma for the courts. A child resulting from a pregnancy arising from a doctor’s lack of care would appear to have a tortious claim to such damages. The concept of compensating for a healthy child has led to moral and policy concerns. In the Canadian courts some years ago this matter was aired in Doiron v Orr the judge awarded damages for mental anguish related to the pregnancy but there would be no liability for the cost of bringing up an unsought child. A range of views has developed from never awarding damages, always doing so or doing so in a graded fashion by offsetting the benefits of parenthood with the economic costs. In an action for unwanted pregnancy in Udale v Bloomsbury Area Health Authority there was an award for pain and suffering along with loss of earnings following a negligently performed operation. However an award for the economic costs of bringing up a child was rejected. In his judgment Jupp J felt that the joy and love of a child should be set against economic loss. There was a different view in Emeh v Kensington and Chelsea and Westminster Area Health Authority where the Court of Appeal awarded damages which included the cost of rearing a child. The court rejected the policy objections cited in Udale.
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