'Unnatural Rejection of Womanhood and Motherhood': Pregnancy, Damages and the Law - A Note on CES v. Superclinics (Aust) Pty Ltd.
University of Sydney - Faculty of Law
Jenny Jane Morgan
Melbourne Law School
July, 23 2008
Sydney Law Review, Vol. 18, No. 3, pp. 323-341, 1996
Sydney Law School Research Paper No. 08/78
This article considers a case that started life as a medical negligence case that later became obscured by legal arguments about abortion and 'wrongful birth'. A doctor failed a number of times to diagnose that a woman was pregnant, and by the time this was discovered, it was too late for the pregnancy to be terminated. When the woman sued for negligence, at first instance it was held that she could not recover because it was argued that if she had decided to terminate the pregnancy when advised of it, such a termination would have been unlawful. The NSW Court of Appeal reversed, and the matter was set to be heard by the High Court of Australia before it settled. The case raises a multitude of issues, including how the spectre of 'abortion' can affect and distort what would otherwise be a simple case of medical negligence; the respective roles of doctors and courts in collateral (non-criminal) proceedings in making assessments as to the availability and 'lawfulness' of abortion in any particular case; and the availability and quantum of damages for the cost of raising a healthy child who would not have been born but for the negligence of the defendant. The judgments under review are also significant for the insights they provide into the persistence of gendered assumptions in aspects of tort law and damages assessment.
Number of Pages in PDF File: 20
Keywords: abortion, tort law, damages assessment, feminist legal scholarship, wrongful birth/wrongful conception
JEL Classification: K10, K13, K30
Date posted: July 23, 2008