Conflicting Analyses of Wrongful Birth: A Response to Chris Bruce

Summary

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Over the last decade, the question as to whether, and what compensation should be awarded to individuals who become parents of a wrongfully conceived (or born) child as a result of clinical negligence in family planning techniques, has plagued the British courts. The goal of this article is not to restate thoughts or sentiments in the area of wrongful conception in general, but to address a few of many concerns specific to the economic analysis of wrongful conception cases. Given the view that the case law in this field has developed in an ad hoc and unprincipled way, and that the situation on quantum is uncertain and in need of clarification, the aim of this paper is to question Chris Bruce's claim that: economic analysis offers a useful means of understanding the behavior of the Courts, and by logical corollary, it provides a useful tool for predicting the outcomes of future cases.

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Extract

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Conflicting Analyses of Wrongful Birth: A Response to Chris Bruce

I. Introduction

Over the last decade, the question as to whether, and what compensation should be awarded to individuals who become parents of a wrongfully conceived (or born) child1 as a result of clinical negligence in family planning techniques, has plagued the British courts. Prior to the turn of the millennia, individuals able to establish liability for the so-called negligence torts of wrongful conception or wrongful birth could expect to receive damages that included an award for child maintenance. Receipt of child maintenance damages was irrespective of whether the unwanted progeny was born healthy or disabled; although, awards in the case of disabled children reflected the additional costs related to caring for a disabled child. Since the landmark case of McFarlane v Tayside Health Board [2000] 2 AC 59, and a series of difficult cases that followed, this is no longer the case. In particular, the damages awarded to victims of wrongful conception have been dramatically reduced as a result of a change in legal policy regarding the provision of child maintenance damages.

In a previous contribution to this journal (Priaulx 2008) concerns with these legal developments were noted, and it was argued that the courts' approach to victims of thi...

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