That's One Heck of an 'Unruly Horse'! Riding Roughshod Over Autonomy in Unsolicited Parenthood
Posted: 19 Dec 2004
The case of Rees v. Darlington Memorial Hospital N.H.S. Trust  U.K.H.L. 52 arises from a lower court backlash against the House of Lords' prior decision in McFarlane v. Tayside Health Board  2 AC 59. McFarlane held that healthy children brought about by negligence in family planning procedures are blessings, and parents should therefore be denied the costs of child maintenance. But, would the House agree with the Court of Appeal in Rees that the factual variation in that case of a disabled parent with a healthy child should form an exception? In tracing the appeal of Rees to the House of Lords, this note explores their Lordships' refusal in principle to depart from McFarlane, as well as the invocation of an autonomy-based approach to address the harm of unsolicited parenthood. In reflecting on the extent to which the wrongful conception action can be said to reinforce the value of reproductive autonomy, this note argues, nevertheless, that Rees illustrates in another way a significant departure from McFarlane, but that this is still a turn in the wrong direction. Far from resonating with women's diverse experiences of reproduction, the law of negligence continues to illustrate little respect for reproductive choice. Therefore, this note calls for a deeper understanding of autonomy, one that recognises and embraces the diversity of individuals' reproductive lives.
Keywords: Child maintenance damages, conventional award, disability, harm, health, reproductive autonomy, wrongful conception
JEL Classification: I19, K14, J17, J14, J16, J18, J71, K13, K10
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