The Concept of Harm in Actions for Wrongful Birth: Nature and Pre-Modern Views of Women

Abstract

Both judicial and academic analysis of so-called ‘wrongful birth’ cases, in which there is a negligence claim arising from the birth of a child that has resulted from negligent sterilisation or advice, can shed light upon prevailing attitudes to women. In particular, some judgements still reflect ‘pre-modern’ beliefs that motherhood is women’s natural fate in life. Such a position thereby marginalises women’s intentions and life plans with regard to pregnancy and minimises the cost of care to the carer in having a child. This is in keeping with other negligence cases in which care in the home is not treated as having economic worth. The view of what is ‘natural’ is employed to deny agency to women and the way that harm is categorised as either ‘personal injury’ or ‘socially constructed’ mischaracterises these cases. Additionally, this pre-modern view of women is associated with the claim that the wrongful birth cases concern only subjectively perceived harms. It is argued that this is based on a misunderstanding. The fact that an act over-rides a woman’s intentions does not thereby render it merely ‘a subjectively felt’ harm. If she is treated as subordinate, as less than a person then the act raises a moral claim: that the courts should make her equality clear in public. Ironically, by referring to distributive justice rather than applying the usual rules of corrective justice in order to defeat Mrs. McFarlane’s full claim for damages, the Law Lords failed to do justice at all.

Keywords: negligence, wrongful birth, women's rights, legally recognised harm, legally recognized harm, feminism and the law, feminism, gender, gender roles, pregnancy

JEL Classification: K00, K10, K13