Judicial Activism or 'Traditional' Negligence Law? Conception, Pregnancy, and Denial of Reproductive Choice

Abstract

This chapter discusses what have come to be known as actions for wrongful birth, wrongful pregnancy or wrongful conception. In particular it focuses on the situation where, due to the negligence of a medical practitioner, a child has been born to parents who did not plan or choose to have that child (indeed who may actively have planned not to have a child), or what an English commentator has termed 'unsolicited parenthood'.

Within the UK and Australia the issue that has raised most contention in such cases is whether as an aspect of damages for what is clearly accepted by courts as negligence, the parents might receive compensation for the costs of raising the child. Unlike in the United States where some states have imposed statutory bars on those actions, there has never been any suggestion in Australia or the UK that the negligence go completely unremedied. Instead the legal issue is confined to the recovery of one head of damages only: ie, the costs of bringing up the child.

In this discussion I focus on an underlying theme: the issue of reproductive choice and in particular the challenge to women's reproductive autonomy that denying recovery entails.

Keywords: tort, negligence, gender, reproductive choice, reproductive autonomy, damages, wrongful conception

JEL Classification: K13, K10, J13