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


Reg Graycar


University of Sydney - Faculty of Law

2006

DISPUTES AND DILEMMAS IN HEALTH LAW, I. Freckelton, K. Peterson, eds., pp. 436-457, Federation Press: Sydney, 2006
Sydney Law School Research Paper No. 08/66

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.

Number of Pages in PDF File: 23

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

JEL Classification: K13, K10, J13

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Date posted: July 23, 2008 ; Last revised: February 16, 2012

Suggested Citation

Graycar, Reg, Judicial Activism or 'Traditional' Negligence Law? Conception, Pregnancy, and Denial of Reproductive Choice (2006). DISPUTES AND DILEMMAS IN HEALTH LAW, I. Freckelton, K. Peterson, eds., pp. 436-457, Federation Press: Sydney, 2006; Sydney Law School Research Paper No. 08/66. Available at SSRN: http://ssrn.com/abstract=1170053

Contact Information

Reg Graycar (Contact Author)
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
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