INTRODUCTION Having a child is typically viewed as a joyous occasion, marked by celebrations and congratulations across cultures. However, this stereotypical view where babies are regarded as blessings is tested in the “birth torts” cases such as McKay v. Essex Area Health Authority1 and JU v. See Tho Kai Yin,2 wherein parents bring an action against medical practitioners on behalf of themselves and/ or their child, alleging that but for negligent medical treatment, the child would have been aborted or not been conceived. Instead of being a blessing, a nightmarish scenario arises whereby these unintended children are now seen as liabilities, bringing along a host of vexatious legal and ethical dilemmas, particularly where such children are disabled. The article will focus on the claims of wrongful life and wrongful birth, opening first with a brief definition, followed by an overview of the current legal position generally. At present, most legal systems do not permit wrongful life claims. Conversely, while there has been some opposition to wrongful birth claims, this has been to a lesser degree. Subsequently, it will consider why many jurisdictions have been averse to allowing such claims, focusing particularly on the jurisprudence of Singapore, the UK, and Australia. In analysing the various legal and ethical arguments advanced by different judges, the article will contend that the present position is unsatisfactory, not least because it lacks a clear and consistent rationale. Thus, it will argue in favour of allowing both types of claims on the basis that both wrongful life and wrongful birth claims are consistent with the general principles of negligence in tort law, and the reasons cited by the judges in refusing such claims, while not wholly groundless, are fundamentally unpersuasive. Finally, it will briefly contemplate the potential broader social implications of allowing such claims, looking in particular to the experience of Israel, which allowed both wrongful life and wrongful birth claims from 1986 up until 2012, when the Israeli Supreme Court abolished the former legal avenue for redress. WRONGFUL LIFE AND WRONGFUL BIRTH – DEFINITIONS AND PRESENT LEGAL POSITIONS While wrongful life and wrongful birth claims are often lodged concurrently, it is necessary at the outset to establish that these are two distinct, albeit related, claims. Wrongful birth claims are lodged by parents, alleging that but for the negligent medical treatment, they would have aborted the child or avoided conception altogether. The injury identified in such cases is the parents’ loss of choice and autonomy over their reproduction decisions,3 and such claims have been lodged in respect of both healthy and disabled children. In contrast, wrongful life claims are brought on behalf of the child. Thus far, it has only been invoked where a child is disabled, and damages are sought in respect of the damage caused by the disability, such as pain, suffering, and any additional financial costs which can be attributed to the disability; for instance, the need for specialized nursing care. Since the alleged negli1 [1982] 1 Q.B. 1166 2 [2005] 4 S.L.R. 96 3 Wendy F. Hensel, ‘The Disabling Impact of Wrongful Life and Wrongful Birth Actions’ [2005] Harvard Civil Rights- Civil Liberties Law Review 141, 142
gence did not actually cause the child’s impairment, but instead allowed him to come into existence, the operable injury is the child’s existence, and non-existence is deemed to be preferable.4 The availability of such claims is mixed across jurisdictions. In the UK, wrongful birth claims are not permissible insofar as parents cannot recover the costs of raising a healthy child (McFarlane v. Tayside Health Board).5 More recently, this approach was endorsed by Choo J in ACB v. Thomson Medical Pte Ltd in Singapore, albeit obiter.6 However, the English Court of Appeal permitted the additional costs that were attributable to the unintended child’s disability in Parkinson v. St James and Seacroft University Hospital NHS Trust.7 Furthermore, whilst the House of Lords unanimously upheld the ruling in McFarlane, it awarded a “conventional” sum of £15,000 in Rees v. Darlington Memorial Hospital NHS Trust,8 which had been first suggested by Lord Millet in McFarlane. Nonetheless, it must be noted that this was awarded ostensibly to redress the legal wrong the parents had suffered in being deprived of their freedom to limit the size of their family,9 as opposed to being a partial recovery of child-rearing expenses. In summary, the present position is that the only recoverable costs are those associated with pregnancy and the extra costs attributable to the child’s disability. In contrast, the High Court of Australia rejected McFarlane in Cattanach v. Melchoir,10 holding by a bare majority that wrongful birth claims were admissible. Thus, upbringing costs are recoverable, and it is likely that pregnancy costs would similarly be recoverable as well. However, it must be noted that this position has been reversed by legislation in certain states.11 Conversely, the position on wrongful life appears to be more consistent; the English courts have clearly established a prohibition on wrongful life claims (McKay). However, it must be noted that a disabled child may still be able to bring a claim under the Congenital Disabilities (Civil Liability) Act 1976. Similarly, the Australian courts also held that wrongful life was not actionable in Harriton v. Stephens.12 In Singapore, the Court of Appeal opted to follow McKay in JU, holding that wrongful life claims were not permissible. However, given that this was discussed in a summary fashion in the High Court, the matter might be considered afresh in future proceedings. LEGAL AND ETHICAL ARGUMENTS AGAINST ALLOWING CLAIMS In McFarlane, the House of Lords held that the claim for child-rearing costs was one for pure economic loss. In applying the normal rules of tort applicable to such claims, it held that it would not be fair, just or reasonable to impose a duty of care in the circumstances. However, while the decision was unanimous, their Lordships did not speak with a single voice, leading to some incongruent reasoning. Below, four rationales advanced by their Lordships in holding that a duty of care ought not to be imposed will be considered. 4 Id., 143 5 [2000] 2 A.C. 59 6 [2015] SGHC 9 at [16] 7 [2001] EWCA Civ 530 8 [2003] UKHL 52 9 Id., Lord Millett at [123] 10 [2003] HCA 38 11 See for example s49A and 49B, Civil Liability Act 2003 (Queensland) 12 [2006] HCA 15
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