A wrong has been done, the child has suffered, they deserve compensation
It is an established principle of tort law that a claim can be made, most commonly by a mother, against a health care practitioner (HCP) where she was negligently not told of a genetic condition that results in a disabled child being born. The claim would be that if she had known, she would have opted for an abortion.
The sum given in successful claims is only for the extra cost of raising a disabled child (Rand v East Dorset Health Authority). This is known as a wrongful birth case.
Despite this, the child in this case has no claim against the HCP. This is known as a wrongful life claim. The only time this issue has come before the courts was 34 years ago in 1982 (McKay v Essex). Mary McKay’s mother contracted rubella while pregnant with Mary, yet she was told everything would be fine and there would be no long term effects. They were wrong. Mary suffered debilitating, permanent birth defects. Mary was unsuccessful in her claim.
The court struck out the claim on two main grounds. Firstly, that this would impose a duty on doctors to terminate pregnancies such as this and this would convey an unpleasant message, namely that the:
[L]ife of a handicapped child [is] not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving.
The second ground was that the courts deemed it impossible to calculate damages as it would mean a comparison between a disabled life and non-existence:
[H]ow can the court evaluate non-existence, the undiscovered country from whose bourn no traveler returns? No comparison is possible.
Time has progressed since this decision and with recent debates on topics such as assisted dying covering the same themes, the rationale in this ruling appears confused and evasive.
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Each of the grounds on which this decision was based can be reviewed in a critical light.
For starters, the first ground is a moot point. Accepting wrongful life claims would not create a duty on the HCP to perform abortions; that choice would still be left to the mother. The duty would instead be to advise the mother on the effect of the illness or disease and give her the option of an abortion. The crux of the claim was always that the mother was not given the choice of an abortion as she was not aware of the effects of the disease. This was even conceded by the Court of Appeal in the original case:
I do not myself find this a convincing reason for denying the action if it would otherwise lie. The decision whether or not to have an abortion must always be the mother’s; the duty of the medical profession can be no more than to advise her of her right to have an abortion and of the pros and cons of doing so.
Therefore, the court appears to have created a straw man by putting forward a reason that appears logical that, in actual fact, is not the true reason for rejecting the claim, as this would not be a result of accepting wrongful life claims.
The focus of the court was instead on the second ground and the difficulty of assessing damages. The two key hurdles in assessing damages was that not only would they have to “pluck” figures from the air as no one has ever experienced the afterlife or pre-life to be able to make the comparison between the quality of life in that state compared to living in a disabled body, but also the court was uncomfortable with awarding a sum that would signify an apology for the claimant being born.
However, again, the reasoning of the court appears flawed here.
Courts frequently have to “pluck” figures from the air when quantifying an award. Let’s not forget the exact same calculation must be made when deciding the amount to award the mother in wrongful birth claims. The sums here would be exactly the same. There are endless awards and decisions that require some amount of judicial guesswork; how much a leg is worth or how much compensation a rape victim deserves. Courts constantly put a price on the value of life, such as how much a bereaved family should get for the loss of a loved one.
The calculation can be done; the root of the issue concerns the moral aspect of compensating for life itself.
The Court of Appeal stated that, except in the most extreme cases, life, even a maimed life, was always better than non-life.
Yet, cases like Mary McKay’s are the extreme cases. It would also only be the extreme cases that would be the subject of wrongful life claims. It is understandable that the court did not wish to enter such a controversial debate concerning the sanctity and value of life yet, in my view, if this were to be a tenable claim, the claimant would be suing for their mother’s lack of awareness and choice.
As we have already established, the duty would not be to terminate the pregnancy, but to inform the mother of the potential effects of the disease and offer her an informed choice. The claimant would therefore be claiming vicariously for the mother’s lack of choice, not because the HCP did not end their life. The court could then avoid philosophical debates regarding the value of life and re-focus their attention on the real wrong that has been done; denying the mother the requisite information which has directly impacted on the child.
In summary, the court’s rationale for disregarding wrongful life claims can be revisited to reflect the changes in the attitudes of society. The wrong that has been committed is denying the mother the choice of an abortion, therefore, the corresponding duty would be to properly inform the mother, not a duty to destroy the foetus.
Secondly and finally, it is true that even with a revised duty, the aim of compensation is still to put the claimant in the position they would have been had the wrong not been committed. The claim still remains that had the mother been given the choice, she would have chosen to have an abortion. A potential option for the court would be to see it from the point of view that had the child been born healthy, would they still have made this claim? The answer is simple: no. Therefore, just as with wrongful birth claims, the award would be the difference between being healthy and being disabled. It is true that the calculation would be exceedingly intricate and complex but the courts have ventured into these territories before and will do so in the future.
The simple fact is a wrong has been done. The claimant has suffered. The claimant deserves recompense. The court should not deny this simply because the calculation is too difficult.
Kirsty Day is an aspiring barrister. She recently completed the BPTC.
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