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The law of wrongful life: Should the children be able to make claims?

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A wrong has been done, the child has suffered, they deserve compensation

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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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8 Comments

Well done

Well written and interesting and clear. Great blog post, Kirsty!

Anonymous

A good article but I would respectfully disagree that the assessment of damages would be the same as in a wrongful birth case. In a wrongful birth case the award is (largely) Special Damages to cover the extra money the parents would have to pay to care for a child with a disability over the cost of caring for a healthy child. In wrongful life claims we would be looking at General Damages for suffering. This could be done by reference to a healthy person which courts do everyday in PI claims but what you’re suggesting is a comparison with non-existence and that is so difficult to do as it raises not only medical questions but theological, philosophical and ontological ones as well.

Just Anonymous

Good article. In my opinion you correctly identify and refute many of the key problems with McKay.

However, I’m not sure you identify the key problem with wrongful life claims: namely, that the child has surely suffered no loss. They would never have been healthy. Their only options were their disabled existence or no existence at all. Can we really say that a disabled existence is a loss compared to non-existence?

So the problem isn’t simply one of calculation (even though that is a separate problem in itself.) Rather, its one of causation: no damage has been caused to the child Claimant herself.

Anonymous

It’s a bit twisted to regard “life” as “wrongful” and lay out all that compo unless you accept the principle of euthanasia, isn’t it?

Anonymous

Being a Queen Mary student myself and taking the Medical Negligence course I can see that whatever argument has been made here is an actual copy of our professor’s. This is rephrasing the couple of paragraphs on the topic of wrongful life that our professor wrote in her book. These are literally the exact same points that our prof made a couple weeks ago when we were covering the subject. Maybe show a bit of creativity next time and come up with your own arguments?

Kirsty Day

It is true that I took the same course, but it is actually an extension of an essay I wrote for that course. Plagiarism is something I take very seriously and I can assure you that every word is my own creation. It is my own opinion and surely the fact an eminent professor such as Ms. Mulheron agrees with me is a positive rather than a negative. She introduced me to the topic and educated me on the case and we had many discussions regarding this interesting and controversial area of law, but these are my certainly my own reflections.

Jack

A.K.A Get back in your box and go fuck oneself.

Anonymous

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